COUNCIL ON GOVERNMENTAL RELATIONS

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The Office of Management and Budget (OMB) has finalized the revision of Circular A-110, -.36, Intangible Property, as directed by the two sentence provision in OMB's appropriation for FY l999 ( P.L. 105-277). Although it had to deal with diametrically opposed comments, OMB did not depart significantly from the goals and the language stated in the August 11, l999 notice. OMB points out that in directing it to revise the Circular, Congress entrusted OMB with the authority to resolve statutory ambiguities, the obligation to address implementation issues the statute did not address, and the discretion to balance the need for public access to research data with protection of the research process. On a few issues that are not resolved, OMB allows that it may consider future changes, should more experience in this new area call for it. In essence, OMB recognized and endorsed the importance of ensuring that the revised Circular does not interfere with the traditional scientific process.
The new definitions:

• OMB retained the term *research data* and its definition. OMB rejects the argument that the new definition transfers authority to determine which records are exempt from mandatory disclosure. OMB states that it always understood that it would be the recipient, not the federal agency staff, who would identify which research data are responsive to an FOIA request.
• OMB continues to exclude *information which may be copyrighted or patented*, but changed the phrase to: *similar information which is protected under law* . This language is intended to ensure that the public access process will not upset intellectual property rights that are elsewhere recognized and protected under law; but it will not create additional protections.
• In order to make the language regarding confidential information more specific, OMB changed the word *file* to *information* and the word human subjects to *persons*. OMB also streamlined the respective language for *data* with the one used in the definition of *published.*
• OMB granted that data already made public, through a data archive or other means, need not be subject to further FOIA responses.
• OMB confirms that the revision should apply only to research data used by the federal government in developing a *regulation*. However, in response to criticism that this was too narrow a reading of Congressional intent, OMB changed the term to *an agency action that has the force and effect of law*. OMB interprets this to mean federal actions that dramatically impact the public.
• OMB was unable to set a *reasonable time standard for the response to a request for data. Further clarification may be issued as experience grows.
• In view of strong support and equally strong opposition, OMB deferred decision on limiting the scope of the proposed revision to regulations that meet a $ 100 million impact threshold.
• OMB outlines the process for compensating respondents for the cost of responding to requests. OMB supports the concept of a separate agreement, based on initial assessments of the cost of compliance by the grantee. This would be followed later by an accounting for the full associated costs to be sent along with the data to the agency.
• Record retention is not affected by this revision. Any data kept longer than the standard three years, however, must be made available for review in response to requests by the federal agencies.
• The effective date is stated as 30 days from publication. While correct, the individual agency implementation will depend upon the speed with which they translate this guidance into their codified systems.
• The scope of coverage is ambiguously stated as *effective for awards issued after the effective date and those continuing awards which are renewed after the effective date.*