FOIA Update: Congress Enacts FOIA-Related Legislation

January 1, 1999

FOIA Update
Vol. XIX, No. 4


Congress Enacts FOIA-Related Legislation

The close of the 105th Congress saw the enactment of two statutes that will have a significant impact on the administration of the Freedom of Information Act at many federal agencies. While neither of these two new laws directly amends the FOIA, one has the potential for greatly increasing the number of FOIA requests that must be processed and the other can in some circumstances require that certain FOIA requests be afforded expedited processing.

The first of these new statutes, the Office of Management and Budget's Appropriations Act for Fiscal Year 1999, Public Law No. 105-277, has the effect of placing under the FOIA certain research data generated through federal grants. The other, the Nazi War Crimes Disclosure Act, Public Law No. 105-246, subjects classified records about Nazi war criminals to new, stringent declassification requirements.

Disclosure Provision for Research Grant Data

The most controversial enactment and the one likely to effect the greatest number of FOIA offices is an extraordinary, two-sentence provision in OMB's 1999 Appropriations Act that requires OMB to amend one of its regulatory publications, Circular A-110, in a very specific way. Circular A-110 is the means by which OMB sets the rules governing grants from all federal agencies to institutions of higher education, hospitals, and nonprofit institutions.

This appropriations law commands OMB to revise Circular A-110 in such a way as to require future such federal grantees to submit their research data to the federal grantor agency so that their data can be processed for potential disclosure in response to FOIA requests made for the data. In short, this new statutory provision overrules the longstanding Supreme Court precedent of Forsham v. Harris, 445 U.S. 169 (1980), which held that data generated and held by private research institutions receiving federal grants were not "agency records" subject to the FOIA and that a grantor agency was not obligated to demand those records in order to respond to any FOIA request for them.

In order to implement this statutory provision, OMB prepared a proposed revision of Circular A-110, which it published for notice and public comment. After more than 9,000 comments were received, OMB revised its proposal, published it for public comment again, and then received more than 3,000 additional comments. Based upon all of the comments received, OMB published a final revised version of Circular A-110, which can be found at 64 Fed. Reg. 54,926.

The final revised version of this circular significantly defines the term "research data" to include "the recorded factual material commonly accepted in the scientific community as necessary to validate research findings, but not" such things as trade secrets, commercial information, personnel and medical information, and any "similar information which is protected under law." Id. at 54,930. It also limits the application of this new provision to "research data relating to published research findings," id. (emphasis added), which it defines as either "[r]esearch findings [that] are published in a peer-reviewed scientific or technical journal" or that are "publicly and officially cite[d] . . . in support of an agency action that has the force and effect of law." Id.

Thus, in actual implementation, this statutory provision should apply to only certain types of "research data" as specified by OMB. Further, it applies only to data created under grants "issued after the effective date [November 8, 1999]" of the revised Circular A-110. But for any such data that is requested under the FOIA, the agency must obtain the data from the grantee and then process the FOIA request, except for one major difference pertaining to fees: "The agency may charge the requester a reasonable fee equaling the full incremental cost of obtaining the research data . . . in addition to any fees the agency may assess under the FOIA." 64 Fed. Reg. 54,930; see also id. at 54,926-30 (containing full details of OMB's guidance for implementation purposes).

Nazi War Crimes Disclosure Act

In contrast to the provisions of the OMB Appropriations Act -- which are triggered by a FOIA request -- the Nazi War Crimes Disclosure Act, 5 U.S.C.A. sect; 552 note (West Supp. 1999), requires agencies to proactively locate specified records and then consider them for declassification for the purpose of making them "available to the public at the National Archives and Records Administration." Id. at § 2(c)(1). It is somewhat akin to the JFK Assassination Records Collection Act of 1992. See FOIA Update, Vol. XIV, No. 1, at 1.

This statute defines Nazi war criminal records as classified records that pertain to any person who has "ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion" from 1933 to 1945 under the direction of or in association with "(A) the Nazi government of Germany; (B) any government in any area occupied by the military forces of the Nazi government of Germany; (C) any government established with the assistance or cooperation of the Nazi government of Germany; or (D) any government which was an ally of the Nazi government of Germany." 5 U.S.C.A. § 552 note,§ 3(a)(1). It also includes classified records that "involved assets taken from persecuted persons" from 1933 to 1945 "under the direction of, on behalf of, or under the authority" of Nazi Germany or its allies when "such transaction[s were] completed without the assent of the owners of those assets." Id. at § 3(a)(2).

The statute provides that agency heads may exempt from disclosure those classified records that satisfy one of its ten "exceptions," which are based primarily on a narrowed list of standards that otherwise generally mirror those of the Executive Order No. 12,958 on national security classification. 5 U.S.C.A. § 552 note, § 3(b)(2).

The one aspect of the Nazi War Crimes Disclosure Act that impacts directly on the FOIA is that any person who was persecuted by the Nazi government of Germany or its allies "shall be deemed to have a compelling need" under "section 552(a)(6)(E) of title 5, United States Code [i.e., the 'expedited processing' provision of the FOIA]" for any Nazi war criminal records. 5 U.S.C.A. § 552 note,§ 4.

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