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Freedom of Information Act

Public Access to Research Data Through the Freedom Of Information Act: Guidance for USDA/NIFA Grantees and Applicants Regarding the March 16, 2000 Amendment To 7 CFR 3019 (USDA Implementation of OMB Circular A-110)

Introduction

Congress included a two-sentence provision in Office of Management and Budget's (OMB) appropriation for fiscal year 1999, contained in P.L. 105-277, directing OMB to amend Section .36 of Circular A-110 "to require federal awarding agencies to ensure that all data produced under an award will be made available to the public through the procedures established under the Freedom of Information Act." OMB published a final revision to Circular A-110 on October 8, 1999 (64 FR 54926); USDA accordingly modified 7 CFR 3019 on March 16, 2000 (65 FR 14406). The amended 7 CFR 3019 is applicable to any award made on or after April 17, 2000. It is important for grantees to understand the basic scope of this amendment and to plan for implementation. NIFA encourages sharing of research data. Nothing in the amendment of 7 CFR 3019 should affect ongoing data sharing plans.

The revised 7 CFR 3019 applies to data that are (1) first produced in a project that is supported in whole or in part with federal funds, and (2) cited publicly and officially by a federal agency in support of an action that has the force and effect of law.

The guidance presented below explains how access would be achieved when a request is made under this amendment.

NIFA acknowledges the National Institutes of Health for their notice to grantees and applicants, upon which this document was based.

Information related to this amendment is provided on:

  • Applicability
  • Definitions
  • Overview of Process
  • Frequently Asked Questions (FAQs)

To see the full text of the A-110 amendment, see Federal Register, Volume 64(195). The amended 7 CFR 3019 is also available from the Federal Register.

Applicability

The amendment to 7 CFR 3019 applies only to data produced with federal support that are cited publicly and officially by a federal agency in support of an action that has the force and effect of law.

Agency actions that have the force and effect of law include:

  • Regulations
  • Administrative orders

This amendment applies to data that are first produced in a project that is supported exclusively with federal funds or in a project with both federal and non-federal support.

The amendment applies only to data first produced under an award issued on or after April 17, 2000.

It applies to data collected by institutions of higher education, hospitals, and nonprofit institutions that receive grants and other financial assistance provided by federal agencies.

It does not apply to data collected by commercial organizations.

It does not apply to most data collected by state and local governments.

It applies to any award that is made on or after April 17, 2000. This is to say, it applies to new awards and to renewals or continuations of existing awards (any action resulting in the issuance of a new Agreement Face Sheet (NIFA-2009).

For data that are already available to the public through an archive or other source, requestors will be referred directly to the public source.

Definitions

The term "Research Data" is defined as the recorded factual material commonly accepted in the scientific community as necessary to validate research findings. It does not include:

  • preliminary analyses
  • drafts of scientific papers
  • plans for future research
  • peer reviews
  • communications with colleagues
  • physical objects (for example, laboratory samples, audio tapes, video tapes)
  • trade secrets
  • commercial information
  • materials necessary to be held as confidential by a researcher until publication in a peer-reviewed journal
  • information which is protected under the law (for example, intellectual property)
  • personnel and medical files and similar files, the disclosure of which would constitute unwarranted invasion of personal privacy
  • information that could be used to identify a particular person in a research study.

Published is defined as when either:

1) research findings are published in a peer-reviewed scientific or technical journal; OR
2) a federal agency publicly and officially cites the research findings in support of an agency action that has the force and effect of law.

Overview of Process

1) The requestor prepares a FOIA request. The request should include:

a) The specific regulation or administrative order citing the data being requested.
b) The publication cited in the regulation or administrative order.
c) The grant number or project number under which the data were produced (information on grants, including grant or project numbers, is available on the REEPort web site.
d) A specific description of the data being sought.
e) A statement that the data are being requested under the amendment to 7 CFR 3019.

2) The requestor should send the request to:

REE Freedom of Information Act (FOIA) Coordinator
USDA/ARS/IS
5601 Sunnyside Avenue
Beltsville, MD 20705-5128
Telephone: (301) 504-1640
Fax: (301) 504-1648

3) The FOIA coordinator processes the request and forwards it to NIFA.

4) NIFA sends a letter to the authorized organizational representative at the grantee institution, with a copy to the principal investigator notifying them about the request. Included with that letter will be guidance provided by the REE FOIA office on how to respond to this request.

5) If the data are already available to the public through an archive or other source, the amendment of 7 CFR 3019 allows the FOIA coordinator to direct the requestor to the public source. And the process stops here. However, if the data are not publicly available, the process continues as follows.

6) The amendment to 7 CFR 3019 provides for a reasonable fee to cover costs incurred in responding to the request. The fee will include both the costs to the USDA and the costs incurred by the grantee institution, which will be accounted for separately. To accomplish this, the FOIA coordinator:

a) Asks the grantee institution to estimate cost of providing the data and
b) Tells the requestor the estimated cost of producing the data.
c) Prepayment will be requested if the estimated cost is greater than $250 or if the requester has a history of not paying for costs related to either FOIA or 7 CFR 3019.

7) Under the amendment of 7 CFR 3019, the grantee institution and the investigator are required to provide data that are consistent with the definition of research data (see definitions above) and deemed responsive to the request.

8) Prior to sending the data to NIFA, the grantee institution and the investigator review the data and redact personal and other information in accordance with amended 7 CFR 3019 definitions (see above) and the FOIA.

9) The grantee institution transmits two copies of the data (one redacted and one unredacted copy) to NIFA and include documentation of all costs involved in processing the request. USDA will develop guidance on how to estimate associated costs.

10) The NIFA program official will review the data and forward it to the REE FOIA Coordinator with any concerns and/or recommendations.

11) The REE FOIA Coordinator reviews the data along with the concerns and recommendations from NIFA and the grantee institution and further processes the requiest.

12) The FOIA coordinator responds to the requestor, issues a final invoice for the fees, and transmits the data.

Frequently Asked Questions

Q— For the past five years, a NIFA-supported study has been collecting data on food-borne illnesses. In June, 1999, this study was cited in a federal regulation. Can the underlying data be requested under the 7 CFR 3019 amendment?
A— No. Only data collected under grants awarded on or after April 17, 2000, are affected.

Q— An award for a time-course study will be renewed after April 17, 2000. This will pay for years 4 and 5 of data collection. Are the data collected in years 1 through 3 accessible under this amendment?
A— No. The only data that are accessible are those collected under an award issued (as a new, renewal, or continuation award) on or after April 17, 2000.

Q— How should telephone calls requesting data under the 7 CFR 3019 amendment be handled?
A—All investigators are free to share their data if they so choose. In doing so, all parties should be aware of the need to protect the personal privacy of human subjects, including confidentiality. However, when a request will be addressed through the 7 CFR 3019 amendment, the caller should be referred to the REE FOIA office (see Overview of Process, above).

Q— Do Certificates of Confidentiality protect against a request for data under FOIA or the 7 CFR 3019 amendment?
A— No. A Certificate of Confidentiality protects personal identifying information. It does not exempt the entire data set. The FOIA requires that any reasonable segregable portion of a record must be released. However, it should be noted that personal identifying information is also protected under FOIA as well as under the 7 CFR 3019 amendment.

Q— Are data collected under an SBIR grant accessible through the 7 CFR 3019 amendment?
A— No, NIFA does not apply 7 CFR 3019 to SBIR grants.

Q—What happens if a FOIA request is made for data that are publicly available in an archive?
A— The FOIA Coordinator will refer the requester to the appropriate location where the data are maintained.

Q— I am an investigator working on a topic that is often cited in regulations. Therefore, I would like to plan to archive the data to be collected in my next project. Can I request funding in the application to archive the resulting data?
A— NIFA views the costs of placing data into an archive as being equivalent to publication costs. If funds are requested to cover the costs of placing data in an archive, the archiving plan should be described in the project description and information about this also should be included in the budget justification section of the application.

Q— Besides archiving, what other things should I think about?
A— You may also want to think about how to structure informed consent statements and other human subjects procedures, given the potential for wider use of data collected under this award.

Q— How long does NIFA require data to be stored after a project is completed?
A—Data must be stored for three years after the submission of the financial status report.

Q— Does that mean that data are only accessible for three years after the close out of the grant?
A— No. If an investigator or grantee institution chooses to keep records longer than three years, they must be made available in response to a request under the 7 CFR 3019 amendment.

Q— What happens if the investigator has moved?
A— Research grants are awarded to institutions, not individuals. NIFA will send the request for data to the Office of Sponsored Research at the grantee institution and will send a copy to the investigator. NIFA will work with the grantee institution to locate the investigator, if necessary, and to fulfill the request for data.

Q— What happens if either the investigator or grantee institution refuses to comply with the request?
A— This would be viewed as a material failure to comply with the terms and conditions of award, and appropriate enforcement action would be taken. This could result in withholding of future support or imposing additional restrictive terms and conditions of award to the grantee institution.

Q— A research project has just received a very small amount of support from NIFA as well as a much larger award from a private entity. Thus, the data will be produced with the combined support. Would the data be accessible under the 7 CFR 3019 amendment?
A— Yes. As long as the data collection occurred with some federal support, regardless of level or amount, the grantee institution would be required to provide the data.

Fellowships awarded to individuals. 7 CFR 3019 is not applied to grants to individuals; thus the data collected under these grants is not subject to the new data release requirements.

Fellowships awarded to institutions. 7 CFR 3019 is applied to all awards made to institutions of higher education, hospitals, and other nonprofit organizations. Whether data collected under a training grant can by requested through FOIA depends on the nature of the grant.

a) If the award is made for a specific, predefined individual to do work outlined in the proposal (such as an NRI Postdoctoral Fellowship), then the data produced from such an award can be requested under the 7 CFR 3019 amendment.

b) If the award is made so that the institution can establish fellowships for which neither the individuals are named nor work to be done is predefined in the proposal (such as for the Higher Education Multicultural Scholars Program), then applicability of the amendment depends further upon whether the work being done has any other federal funding.

i) If the fellow works on a project that receives any federal funding, then the data generated by the fellow can be requested under the 7 CFR 3019 amendment.

ii) If the fellow works on a project that does not receive any federal funding, then the data generated by the fellow can not be requested under the 7 CFR 3019 amendment.

Q— The State Department of Natural Resources received a grant to study water quality. Are the resulting data accessible under amended 7 CFR 3019?
A— If the State Department of Natural Resources collected those data, they are not accessible under this specific provision. However, if the State Department of Natural Resources contracted data collection to an institution of higher education or other non-profit organization, the data would be accessible.

Q—An abstract was published in the Report of the 10th Annual Meeting of Snail Physiologists and cited in a federal regulation. Are those data accessible under amended 7 CFR 3019?
A— It depends. If the abstract is based on preliminary analyses (as abstracts often are), then the data would be excluded since they do not fit the amended 7 CFR 3019 definition of research data. However, if the abstract is not based on preliminary analyses and is cited by a federal agency in a regulation, the data may be accessible.

Q— I have a subcontractor on my grant who owns a private business and is concerned over proprietary rights issues. Does this amendment in 7 CFR 3019 apply to this business?
A— Private businesses, even as subcontractors on grants to institutions of higher education, hospitals, and non-profit institutions, are subject to Federal Aquisition Regulations (FAR), not 7 CFR 3019. Therefore, this amendment does not apply to a private business as a subcontractor.

 

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