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.
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]
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 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.
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
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.
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.
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