As rabidly partisan as Congress has become, conservative and liberal members’
agendas do occasionally intersect. Today’s example—an overlapping information
policy agenda—comes from the good old Freedom of Information Act.

FOIA began life as a nonpartisan effort, driven mainly by persistent congressional
fights with the executive branch over access to records. Over time, however, the political
ground has shifted. Over the last 10 or 15 years, conservatives have tended to grumble
about FOIA while liberals defended it.

But in the closing days of the last Congress, several conservative Republican
senators—Richard C. Shelby (Ala.), Ben Nighthorse Campbell (Colo.) and Lauch
Faircloth (N.C.), who had lost his bid for re-election—added a new pro-disclosure
requirement to the law. The vehicle they used for the requirement was the monster budget
bill. The new language was buried in the Treasury and Postal appropriations section.

The law orders the Office of Management and Budget to amend Circular A-110 by requiring
federal agencies awarding grants to ensure that data produced under an award be made
available to the public through FOIA procedures. Under usual FOIA rules, records of
federal grantees and contractors are not available unless the government has possession of
the records.

The intent is to provide public access to research data used to justify federal
regulatory programs, although the provision’s effect is much broader. Floor
statements by the senators referred to the Endangered Species Act and tobacco smoke
research. Thus, the legislation is at the intersection of liberal disclosure policies and
conservative anti-regulatory policies.

Congress chose a remarkable way of extending FOIA to federal grantees. Circular A-110
covers grants to colleges, hospitals and other nonprofit organizations. Not only did
Congress direct OMB to amend the circular, it insisted that the amendment be made at
section .36 of the circular. Talk about micromanaging.

OMB is struggling with how FOIA requirements will work. Agencies will have a year to
revise regulations once OMB issues guidance, which is expected soon.

The sparse legislative language does not make it clear which FOIA requirements will
apply to researchers directly and which to agencies. Will researchers become agencies
under FOIA? That seems unlikely because it would require each researcher to publish
notices and rules in the Federal Register. Agencies awarding grants will probably have to
take the responsibility.

Agencies may also have to index commonly requested records, post them on the Internet
and perhaps describe major information systems maintained by researchers.

Researchers will surely have to fulfill requests for records simply because they
possess the records. Less clear is who will be responsible if a search is inadequate or
not done on time. Researchers are not federal employees and cannot be sanctioned under

The law authorizes new fees. When data is obtained solely at the request of a private
party, the agency may authorize a fee equal to the incremental cost of obtaining the data.

Although FOIA allows any person to make a request, some
requesters—senators?—may use their status to avoid fees.

Also uncertain is which costs can be recovered. Grantees will incur costs in finding
and reviewing data, but it is not clear if these costs are recoverable or even
reimbursable. FOIA fees ordinarily go directly to the Treasury, not to the agency that
collects them.

As policy, the new disclosure requirement has value. But you’ll face major
administrative problems adapting an already awkward FOIA process to cover nongovernmental

For agencies that are still struggling to implement the 1996 Electronic FOIA
amendments, more new FOIA requirements will be unwelcome. Rewriting rules and grant
agreements will take time.

Despite the inevitable mess, I have to smile.

After years of seeing FOIA diminished through midnight amendments, it is nice to see
the law expanded for a change. 

Robert Gellman, former chief counsel to the House Government Operations
Subcommittee on Information, Justice, Transportation and Agriculture, is a Washington
privacy and information policy consultant. His e-mail address is rgellman@cais.com.

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