FOIA and sponsored programs administration. (Commentary).

Introduction

The Freedom of Information Act (FOIA), viewed by some people today as a methodical and even burdensome means for gaining access to previously unavailable information and records, was born in controversy over the notion of opening up the federal government's once closed record keeping and sharing process. Research administrators (RAs) are involved daily with various aspects of this legislation and yet have limited knowledge about its implementation and potential vulnerbility.

The Case for FOIA

When President Lyndon Johnson signed the FOIA into law in 1966, the enactment culminated a 12-year battle to determine whether the executive or legislative branch of the government would control access to public records (McMasters, 1996). Between June of 1964 and October of 1965, government officials actively resisted the proposed openness to records. In fact, Johnson's own press secretary, Bill Moyers, publicly criticized the bill and its implications for loosening governmental control over sensitive information. Due to the ongoing controversy surrounding FOIA (McMasters), it is not surprising that President Johnson signed the bill at the LBJ Ranch, on the last day before a mandatory veto would have occurred--without publicity, without even a press conference, and without the distribution of ceremonial pens.

Even after the bill became law, the resistance continued. It was not until 1974, when the Act was first amended, that FOIA began to work as initially intended. The 1974 amendments provided that any person has a right to request and gain access to government records and information, except where those records are protected by nine exemptions pertaining to the following: (a) matters of national security, (b) internal agency rules, (c) that which is governed by other statutes such as the Income Tax Code, (d) business information (such as trade secrets, commercial/financial information, and formulas), (e) internal government memos, (f) private matters [anything that would lead to any invasion of privacy, as protected under the Privacy Act of 1974], (g) law-enforcement investigations, (h) regulation of financial institutions, and(i) oil wells.

It is noted, however, according to the Reporters Committee for Freedom of the Press (RCFP), that "...[e]xcept for the statutory exemption [exemption c], these exemptions, for the most part, are not mandatory--which means that the government is permitted, but not required, to withhold the information. Even if records fall within these categories, they still can be released at the government's discretion. This is particularly true if [one] can show that disclosure would be 'in the public interest'...." In addition, RCFP explains that "...even though portions of a requested document may be covered by an exemption, the [FOIA] requires the government agency to release the remainder of the document or file after the exempt material has been edited out ...." (Daugherty, 1998, p. 16).

For those working with federally funded proposals and those who request the information within them, the important exemptions are those for business information and private matters. These exceptions pertain to requests for proposals for contract work with the Department of Defense, which could entail matters of national security (exemption a), activities conducted by businesses or corporations (or even such organizations as institutions of higher education) that might involve trade secrets (exemption d), or geological research that might reveal the location of oil wells (exemption i).

The 1974 amendments also included the stipulation that the government must respond to requests within 10 working days of the date of the request. This was later extended to 20 days under the Electronic FOIA amendments of 1996. In addition, the 1974 amendments make clear that private organizations and businesses need not release information to the public, whether or not that information is submitted to the federal government; however, information submitted to the government by an organization, and this includes private corporations, state/local government entities, and nonprofit organizations, including institutions of higher education (say, via a proposal for funding) must be made available to a requester through FOIA, provided the information is not protected under the exemptions.

Under the 1996 Electronic FOIA amendments, government agencies must make publicly available any records created after 1 November 1996 via computer/telecommunications or other electronic means by 31 December 1999. (NEH, 2001) The 1996 amendments also direct agencies to furnish materials or guidelines for requesting information and to include an index of all information systems, a description of major information and locator systems maintained by the agency, as well as a handbook on how to obtain information from the agency.

Traditionally, requests for information under FOIA and responses to those requests are delivered through the U.S. mail. If a federal agency has the capacity and agrees to do so, it will accept requests via facsimile. Although it is not standard practice across the federal government, the National Endowment for the Humanities (NEH) provides electronic FOIA forms and accepts electronic requests for information under the Act (McMasrers). In addition, the National Science Foundation's (NSF) Cultural Anthropology Program has posted full-text copies of sample funded-proposals for a number of years. According to Stuart Plattner, NSF Program Director for the Cultural Anthropology Program, the sample proposals are dissertation assistance awards, which are available with full permission of the investigators to be used as an educational tool for prospective applicants for future dissertation awards. Plattner said the hope is that the program receives the best possible proposals in the future, and that these sample award s provide models for doctoral students who will approach the program in the future. He knows of no other NSF program engaged in this activity, nor has he ever been approached by anyone from the research administration community regarding this practice. NEH and NSF appear to be exceptions to the rule in offering electronic request capacity and access to funded proposals, even on a limited basis.

According to the Society of Professional Journalists (SPJ), some changes introduced under the 1996 Electronic FOIA amendments raise concerns regarding privacy and access to information. Advocates for universal access to information argue that the government should make more information available electronically. However, those stressing a cautious approach believe that rapid changes in the direction of quicker, or universal, access could lead to increased litigation over violations of the Privacy Act.

Because of the pressures already placed on agency staff to release the information rapidly and the disincentives to do so because of possible legal backlash from third parties requesting the information, agency personnel may consider circumventing FOJA requirements. SPJ maintains that there are currently few incentives for government employees to release information, especially to do so quickly, but there are potentially severe penalties for releasing sensitive or protected information. Also, agency staff under pressure, could begin to release information, electronically or otherwise, without taking appropriate safeguards.

Citizen information-seekers can abuse the privilege of having access to information by not adhering to the spirit of FOIA when seeking the information from other sources. Circumvention leads to greater liability for Privacy Act (PA) infringement. PA-circumvention-of-FOIA comes in the form of requesting copies of funded proposals from successful principal investigators (PIs) without protecting and carelessly disseminating the information received. Carelessness can sabotage the process by which future researchers or RAs can request information from successful PIs, as word of the carelessness and its effects circulates through the scholarly community and successful PIs become wary of sharing the results of their work.

Ironically, FOIA's popularity, based on its initial appeal to the general public through governmental openness, now may be fueling discussions that FOIA should become less freely applicable--all of this while the 1996 Electronic FOIA would appear to open up the agencies to an unprecedented degree. What, then, should the RA keep in mind in approaching FOIA and issues related to the letter of the law and its intent?

What This Means for RAs

RAs are involved often with various aspects of this legislation and may have limited knowledge about its implementation and vulnerability. For example, when RAs train novice grant-seekers how to apply for grants, potential investigators may ask for an example of a funded proposal to help them envision the end product. RAs also find copies of funded proposals useful as models to organize a proposal, to follow the complicated and apparently conflicting directions in the program guidelines, or to construct internally consistent selected standard proposal parts. Examples of funded proposals serve a variety of uses for RAs, but finding good examples appropriate for the situation is difficult. Usually when RAs cannot find what they want in their own files, they seek copies from other sources.

RAs have several options for sources, they could: (a) request a copy from the funding agency, (b) contact a successful P1 directly, or ( c) contact a colleague in the PI's Sponsored Research Office to request a sample. Obtaining a copy directly from the federal agency requires knowing how to ask, which means knowing how to use FOJA. As mentioned earlier, each agency must make guidance available on how to request information under FOIA. To obtain a particular funded proposal, the requestor contacts the awarding agency and specifies which proposal is desired.

For all persons involved in research administration, the greatest obstacle to FOJA is the 6- to 8-week (or more) delay between submitting a request and receiving a copy of a funded proposal. It is one thing for government to fulfill the requirements of FOIA by responding to a request within 20 working days and another to fulfill the request.

Although the length of time involved in processing FOIA requests encourages RAs to circumvent the FOJA process in obtaining funded proposals, the Act does, as shown above, fulfill a noble promise. Along with the Privacy Act, FOIA makes possible the disclosure of information in funded proposals and encourages an open exchange of information inside and outside of the government while protecting citizens' privacy. Far too frequently RAs do not take the time to consider the right to privacy of the P1 whose proposal is being distributed. For example, RAs should ask themselves how often they have seen or even used sample proposals and share un-sanitized proposals with personal data remaining on the sample. Data such as the PI's social security number, address, and salary are often included in the proposal. Occasionally private information of other contributors is also stated. Risk exists to disseminate such private information broadly and indiscriminately.

As careful as RAs are about ensuring the security of their own personal data, it is important they be equally concerned about broadcasting a PI's personal data to complete strangers with no control over who will have access to this information in the future. Of all persons within the grants enterprise, RAs are in the best position to ensure that personal information is not distributed during the use of funded proposals, no matter how those proposals are obtained. With this foreknowledge of risk, it is the RAs' responsibility to protect the data and the P1 and to observe the spirit, if not the letter, of the FOIA and the Privacy Act.

Recommendations

The following are some steps recommended for RAs to ensure the privacy of the individuals involved in a funded project, as well as to protect any proprietary information that might be contained in the proposal. First, upon identifying a funded proposal that an RA wishes to obtain, secure the PI's permission to use this funded proposal. By contacting the research office at the PT's institution, one can request permission from the institution or directly from the P1. In either case, it is important for the PI to learn how the proposal will be used. If the plan includes dissemination at a workshop or conference for a number of researchers or RAs, or if the proposal will be used repeatedly for a similar purpose, the P1 can determine, what if any, proprietary or personal information should be eliminated. Second, at a minimum, RAs should eliminate key personal information from the proposal ( social security number, address and phone numbers, and the curriculum vitae). Another suggestion is how to delete or conceal personal information. Rather than whiting it out with a coating of correction fluid over the printed information, or blacking it out with a permanent ink marker, it is far more effective to first white out or black out the information and then photocopy the page. In addition, RAs should also stamp an identifier on pages throughout every proposal they distribute to ensure that responsible dissemination can be tracked.

While these protective measures take both time and effort, the responsibility to protect the personal information is clear. Expecting no less care in the use of their own personal information, recalling the profound example of the FOJA, and recognizing the fragile aspects of its continued existence, RAs are in a unique position to support the spirit and implementation of the Act.

The Future of FOlA

The development of the World Wide Web has the potential for changing access to funded proposals. Recently, The Grantsmanship Center, Inc., a for-profit grants assistance organization, began to offer funded proposals for a fee as a part of its Web-based operations. The company holds over 100 proposals in the area of postsecondary education alone, covering only the Departments of Education and Health and Human Services. So far, the Grantsmanship Center's service appears to be the only one of its kind, but, depending on its success, it might be breaking new ground in the field of electronic research administration.

With greater availability of Web-based technology, as well as the potential appearance of future fee-based operations to search for and find funded proposals, one wonders if PIs will be increasingly hesitant to share their proposals (or at least to do so gratis). Similarly, it would be naive to think that successful PIs and their home institutions would universally operate in an atmosphere of free and open information exchange if it became known that others were profiting monetarily from the information exchange. One might even wonder if the entire enterprise of providing funded proposals to prospective PIs could evolve into a fee-for-service exchange.

Recalling the pressures placed upon the government to provide information under FOIA in a timely and legally appropriate manner, one might ask if it is possible that increasing numbers of requests to successful PIs for copies of funded proposals (the method of circumventing FOIA) from researchers and RAs in the field will change the nature of this exchange of information in ways yet unconsidered. In addition, since FOIA is in some ways a fragile law, which has had, and continues to have, detractors in Congress, is it also possible that if the government is unable to abide by FOIA without high cost to the taxpayer, some legislators might attempt to weaken it or subvert it? How great a loss would this be to RAs or prospective PIs? And will changes to the system (or lack of a system) of information exchange between a successful P1 and a prospective P1 force those seeking funded proposals to return to a more exclusive reliance on FOIA, thereby increasing the aforementioned pressure on the federal government to abide by it?

Many of the logistical and philosophical issues surrounding FOIA have been developing since its inception and over a long period of time, while others are just now emerging due to the competitive nature of the grants process and rapid technological innovation. It will be worth watching the evolution of FOIA and the issues surrounding it, as one also watches how information exchange evolves inside and outside of the federal government. In any case it is important that RAs assure the privacy of the P1 when gathering and disseminating personal and private information.

References

McMasters, P. (1996). FOIA, It's Always There. Quill, 84(8),10-12.

Feinberg, L. (1996). The Day LBJ Signed FOIA. Quill, 84(8), 13-15.

Daugherty, R. (Ed.). (1998). How to Use the FOI Act (8th ed.). Arlington, VA: The Reporters Committee for Freedom of the Press.

The National Endowment for the Humanities. (22 May 2001). The Freedom of Information Act: A Guide to Requesting NEH Records. Retrieve from http://www.neh.gov/whoweare/foia/foia_gui.html

Plattner, S. Personal Communication 9 April 2001.

National Science Foundation: Social, Behavioral, and Economic Sciences Directorate/ Behavioral and Cognitive Sciences Division. Cultural Anthropology Proposal Samples. (May 22, 2001). Retrieve from http://www.nsf.gov/sbe/bcs/anthro/samples/start.htm

The Grantsmanship Center, Inc. (22 May 2001). TGCI Winning Grant Proposals On-line. Retrieve from http:// www.TGCIgrantproposals.com/index.htm

Daniel T. Riggle, MA currently serves as Senior Program Associate at the Grants Resource Center (formerly known as the Office of Federal Programs), of the American Association of State Colleges and Universities. His work includes assisting over 20 universities in the Western Region, monitoring programs of NSF, Departments of Agriculture, Transportation, and Interior, EPA, and NRC/NAS, and serving as editor of GRC Bulletin for the last five years and previously GRC GrantWeek and GRC NIH/NSF Bulletin. He also teaches college courses in Research and Advanced Writing and Introduction to Literature, Business Communications. Mr. Riggle has a MA in English from Northern Illinois University.

Peggy Harrel, PhD serves as Director of Graduate Studies and Sponsored Research at the University of Southern Indiana (USI) since 1992, having joined USI in 1989. Dr. Harrel is currently lialson officer advisory group member for AASCU's Grants Resource Center (GRC). She received her doctorate in English linguistics from the University of Wisconsin-Madison. She is active in professional activities and presented at regional and national meetings of SRA, NCURA, and GRC numerous times and previously published in SRA's The Journal, SRA News, and the Proceedings of Invited Papers.

The impetus for this article was a presentation to the March 2000, AASCU Grant Resource Center (GRC) Spring Meeting. The content has been substantially revised and expanded. In addition, the content of a portion of this article (less than one-third) was published in the SRA Newsletter, June/July, 2000 as Beyond the Freedom of Information Act: What Is Your Responsibility? Contact the commentators at the following addresses. Daniel T. Riggle, MA, Senior Program Associate, Grants Resource Center, American Association of State Colleges and Universities, 1307 New York Avenue, Fifth Floor, Washington, DC 20005-4701. Phone: [phone]. E-mail: [e-mail]. Peggy F. Harrel, PhD, Director, Graduate Studies and Sponsored Research, University of Southern Indiana, 8600 University Boulevard, Evansville, Indiana 47712-3596. Phone: [phone]. E-mail: [e-mail]