University of California
Office of the President 

Senior Vice-President-- 
Business and Finance 

Research Administration Office

December 20, 1999

Interim Contract and Grant Memo No. 99-08

Vice Chancellors for Research
Contracts and Grants Officers
Information Practices Coordinators

Subject: OMB Circular A-110 Revision: Release of research data requested by the public under Federal grants via Federal Freedom of Information Act Procedures 

Purpose

This Interim Memo provides guidance about implementing the requirements of the A-110 Final Rule regarding release of research data. NIH issued implementation and guidance on December 14, 1999 on the www: http://grants.nih.gov/grants/policy/a110/a110_guidance_dec1999.htm, hardcopy Enclosed unless you are receiving this Memo electronically. Federal agencies are working together to develop a common rule, as well as individual agency guidance to be issued early in 2000.

This Memo supplements the NIH guidance by suggesting that campus Information Practices Offices be responsible for coordinating replies to public requests, and clarifies the application of the California Public Records Act in addition to FOIA. 

This Memo will be revised, as needed, after Agencies issue their implementing rules. Please submit questions or issues to me as they arise so we can develop a coordinated UC implementation. RAO will work closely with OP Office of Research, Allison Rosenberg, and Information Practices Coordinator Ross Smith in Office of General Counsel.

Background

Senator Shelby included a provision in Public Law 105-277 which directed "OMB to amend Section___.36, Intangible Property, 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 (FOIA). 

OMB published the Final Revision to A-110 to implement Public Law 105-277 in the Federal Register dated October 8, 1999. A copy may also be obtained from: www.whitehouse.gov/OMB/fedreg/a110-finalnotice.html

It is important to note that "OMB recognizes the importance of ensuring that the revised Circular does not interfere with the traditional scientific process." This is reflected in the care with which definitions were developed.

Guidance

The NIH guidance, including the Q & A, is quite comprehensive and well thought out. There will be additional questions and issues as the implementation unfolds for NIH, other Federal Agencies and UC.

The NIH guidance is limited to releases under the Federal Freedom of Information Act (FOIA). The University is also subject to the California Public Records Act (CPRA). If a request from the public is for research 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, then the procedures in the NIH guidance should be followed, whether or not the requestor cited the FOIA or the CPRA. If the request is for data that do not meet the above criteria, it should be processed under the CPRA.

University responsibilities 

a. University Coordination Points 

The university has Information Practices Act (IPA) Coordinators on each campus are responsible for handling requests from the public pursuant to the California Public Records Act. It is recommended that IPA Coordinators be assigned the responsibility for handling/coordinating requests for release of research data from Federal agencies pursuant to the A-110 revision.

The NIH guidance provides for NIH to send copies of the request to the Sponsored Research Office and the principal investigator. We recommend that a copy of the notice be sent by the campus Sponsored Research Office to the campus IPA Coordinator upon receipt.

a. University Screening. 

Incoming requests from Federal agencies should be screened by the University using the same criteria used for Federal screening as described in the NIH guidance. If the Agency request does not provide the information required or the request is invalid, the IPA Coordinator should go back to the Agency to obtain the information before it is forwarded to the Department.

b. Responsibility to define and provide research data.

The responsibility for responding to the agency request rests with the
University. However, the University's ability to respond, depends, in
major part, on the availability of the PI who performed the research,
and the availability of the research data. 

The PI who performed the research under the Federal grant is
responsible for determining: the scope of the incoming request, the
research data within the scope, what data is within the A-110
definition of research data, whether the publication criteria specified
by A-110 have been met, the location of the data, and arranging for
the copying of the data. If there is more than one PI on one or more
UC campuses, or subawards to non-UC research entities, these PIs
may have to be identified and contacted as well.

If the PI who performed the research is unavailable, then the
responsibility falls on the Department Chair to prepare the
response. This assumes the research data is available to the
Department. If the PI has transferred to another institution, and has
taken the research data with him/her, the request from the agency
should be returned to the Agency with information as to how to locate
the PI.

If the research data cannot be found, the FOIA and CPRA requires that
a diligent search be done and a good faith effort be made to comply.
 
Research data refers to raw data. In making decisions about what is
required to be provided, the obligation is limited to providing the raw
data. There is no obligation to create a new document which arranges,
organizes, documents, or indexes the data.

c. Estimating costs. 

The Department is also responsible for developing a cost assessment to respond to the agency request. NIH guidance states that information will be provided in the near future about estimating costs. There will be some additional guidance from OP on this matter. The University's experience in responding to requests under the CPRA will be considered together with NIH guidance. If costs need to be estimated before the guidance is issued, please consult with the campus IPA Coordinator. 

Please note the NIH guidance provides for the University to submit a cost estimate to the Federal agency, for approval by the public requestor, before the University is obligated to incur the expense and effort to collect and make the research data available.  

d. Record retention. 

A-110 requires financial records supporting charges to grants to be retained for "a period of three years from the date of submission of the final expenditure report" under the grant. However, the Federal right of access to records is "not limited to the required retention period (three years) but shall last as long as the records are retained. " So research data must be retained for a minimum of three years, and if kept longer, is required to be provided in response to public requests as long it is retained.
  

Questions regarding the interpretation of the A-110 data release requirement may be referred to the Campus IPA Coordinator, Campus Vice Chancellor for Research, or OP Research Administration Office, OP Vice Provost for Research, and Office of General Counsel.

Refer: David Mears
510-987-9840
David.Mears@ucop.edu

David F. Mears
Director
Research Administration Office

Cc:

Executive Assistant Pacult
Vice Provost Shelton
Director Rosenberg
Coordinator Smith