Symposium: Modernizing the Tools & Approaches to Improve Data Availability & Transparency (December, 2013) Existing Tools for Accessing Federal Data Pamela D. Marks, Esq. pmarks@bdlaw.com
Tools for Requesting Data? • Informal • Formal – Primary Tool: Freedom of Information Act – Additional Tools: • Executive Branch Policies (OMB Circulars A-110 and A-130 & Office of Science & Technology Policy Memo) • Federal Advisory Committee Act (FACA)
Freedom of Information Act (FOIA) • Federal law • Requires disclosure of Federally held information unless the information falls within any of nine specified exemptions carved out by Act • Written Request • Deadlines for Response: typically 20 days for initial answer
Official Administration Policy January 21,2009: President Obama issued a memorandum stating that FOIA "is the most prominent expression of a profound national commitment to ensuring an open Government ," and directing that the Act "should be administered with a clear presumption: In the face of doubt, openness prevails ." Presidential Memorandum for the Heads of Executive Departments and Agencies Concerning the Freedom of Information Act, 74 Fed. Reg. 4683 (January 21, 2009)
General Concept: Data Are Subject to FOIA Disclosure "Factual material" such as data, unevaluated factual reports and summaries, and the like, will generally not be shielded from disclosure See, e.g., Vaughn v. Rosen , 523 F.2d 1136, 43-44 (D.C. Cir. 1975) (Distinguishing factual material from documents disclosing internal advice, recommendations, and opinions that are part of the "give-and-take" of the deliberative process privilege may be protected)
General Concept : Sharing of Data Promotes Sound Science The idea of shielding underlying factual data and analysis from disclosure "runs counter to the entire premise behind modern scientific research." "Scientists expect to have their data reviewed by other experts in the field to ensure the integrity of the results," and "government researchers must be willing to expose the underlying data to public scrutiny." Chicago Tribune Co. v. United States Dept. of Health and Human Servs. , 1997 U.S. Dist. Lexis 2308 at *52 (N.D. Ill. Feb. 26, 1997)
When Are Data Exempt From Disclosure? Even so, often exemptions are claimed. – Exemption 4: " trade secrets and commercial or financial information obtained from a person and privileged or confidential." 5 U.S.C. §552(b)(4) – Exemption 5: deliberative process privilege (derived from the exemption for "inter-agency or intra- agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.") 5 U.S.C. §552(b)(5) – Exemption 6: "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy ." 5 U.S.C. §552(b)(6)
Conflicts Over Disclosure Resolution mechanisms • Negotiation • Administrative Appeals • Civil Litigation
Other Policies and Tools that Encourage Disclosure • Statements of Policy: –OMB Circulars A-110 and A-130 –Office of Science & Technology Policy Memo • Federal Advisory Committee Act (FACA) • Information Quality Act
Office of Management and Budget Circulars • CIRCULAR NO. A-130 Revised http://www.whitehouse.gov/omb/circulars_a130_a130trans4 Establishes Federal Agency Policy: “Agencies have a responsibility to provide information to the public consistent with their missions.” – “The Federal Government is the largest single producer, collector, consumer, and disseminator of information in the United States.” – “Government information is a valuable national resource.” – “Because the public disclosure of government information is essential to the operation of a democracy, the management of Federal information resources should protect the public's right of access to government information.” – “ The open and efficient exchange of scientific and technical government information , subject to applicable national security controls and the proprietary rights of others, fosters excellence in scientific research and effective use of Federal research and development funds .”
OMB Circulars Budget Circular A-110 (Section 36d) http://www.whitehouse.gov/omb/circulars_a110/ • Applies to Federal Agency administration of grants to and agreements with institutions of higher education, hospitals, and other non-profit organizations • Obligates Agency to obtain from its contractors “ research data ” underlying findings used by the Agency in developing Agency action
OMB Circulars • Budget Circular A-110 (Section 36d) http://www.whitehouse.gov/omb/circulars_a110/ • Exceptions: Research Data does not include: – preliminary analyses and drafts of scientific papers – plans for future research – peer reviews – communications with colleagues – trade secrets, commercial information, materials necessary to be held confidential by a researcher until they are published: • Publication in a peer-reviewed scientific or technical journal; or • research findings officially cited the by a federal agency in support of an agency action that has the force and effect of law – Personnel and medical information . . . such as information that could be used to identify a particular person in a research study
Office of Science & Technology Policy Memo (Feb. 22, 2013) http://www.whitehouse.gov/blog/2013/02/22/expanding-public-access-results-federally-funded-research “ Scientific research supported by the Federal Government catalyzes innovative breakthroughs that drive our economy. The results of that research become the grist for new insights and are assets for progress in areas such as health, energy, the environment, agriculture, and national security.”
OSTP Memo • Committed “to the greatest extent and with the fewest constraints possible” Federal agencies should make results of federally funded research available and useful for the public, industry and the scientific community • Requires researchers to better account for and manage the digital data resulting from federally funded scientific research
Federal Advisory Committee Act (FACA) • Applies advisory committees • Background: – Congress recognized that advisory committees "are frequently a useful and beneficial means of furnishing expert advice, ideas, and diverse opinions to the Federal Government." 5 U.S.C., App. 2, §2(a) – But Congress also wanted to control the advisory committee process and make it open to public scrutiny • “the records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by each advisory committee shall be available for public inspection. . .” (subject to FOIA) 5 U.S.C., App. 2, §10(b)
Questions? Pamela D. Marks, Esq. Beveridge & Diamond, P.C. 201 N. Charles St. #2210 Baltimore, Maryland 21201 (410) 230-1315 pmarks@bdlaw.com
Recommend
More recommend
