How FOIA and CRIIA Apply in Sponsored Research
The Freedom of Information Act (FOIA) and Confidential Research and Investment Information (CRIIA) Act both impact what information must be made publicly available or can be exempted. Learn more about these two acts and their impacts on sponsored research.
U-M is a public body subject to the disclosure laws of the State of Michigan. Thus, according to the Michigan Freedom of Information Act (FOIA), a public record prepared, used, owned, possessed or retained by U-M must be made available for inspection and/or copying upon presentation of a written request.
The Confidential Research Information and Investment Act (CRIIA) has protections available for sensitive materials provided to University of Michigan by research partners and sponsors. CRIIA extends the ability of the University to promise confidentiality beyond what is usually allowed by FOIA.
Exceptions under CRIIA
CRIIA has protections available for sensitive materials provided to U-M by research partners and sponsors. CRIIA was enacted in 1994 to specifically protect confidential research, intellectual property and trade secret records maintained by a public university in Michigan. Under Section 3 of CRIIA (MCL 390.1553), certain informations may be cited as exempt if all the following conditions are met:
- The information must be used exclusively for research, testing, evaluation and related activities. Information includes:
- “Trade secrets, commercial information, or financial information, including that information as it relates to computer hardware and software, that is provided to a public university or college by a private external source and that is in the possession of the public university or college in the performance of a lawful function is exempt from disclosure as a public record under the freedom of information act,” (MCL 390.1553)
- The third party must clearly designate the information as confidential before or at the time it is received by the University. The information cannot be designated as confidential after it has been received by the University.
- The University and the third party must enter into an agreement to keep the information confidential.
- Once the confidentiality agreement is authorized, a document containing a general description of the information to be kept confidential, the term of the confidentiality agreement, the name of the third party with whom the confidentiality agreement was made, and a general description of the nature of the intended use for the information must be recorded and maintained in a central place and made available to the public upon request.
What does CRIIA not exempt?
CRIIA does not exempt the following:
- Information that is otherwise publicly available or that is submitted as a condition of receiving a government contract, license or other benefit
- Information that indicates that the use of a product or process is likely to be dangerous to humans
- Information related to a product or process that is protected by patent, copyright or trademark and that is being sold or marketed directly by the University to the general public
Who decides to disclose?
The decision whether material should be withheld under FOIA and CRIIA is made by the University’s chief FOIA officer, if necessary after consultation with other appropriate offices including the Office of the General Counsel. The FOIA officer has the authority, delegated by the president, to deny a FOIA request.
The role of non-disclosure agreements
U-M’s standard nondisclosure agreement (NDA) is intended to expedite the process for exchanging and protecting a sponsor’s confidential information prior to entering into a sponsored project agreement. Often the parties are simply exploring the possibility of a project that may or may not result in the University and sponsor establishing an agreement. ORSP’s goal is to provide a fair and balanced NDA that protects the sponsor’s information and also meets the needs of the University as a public body.
Requests for records: What to do
Forward requests for University records to the University of Michigan FOIA Office immediately. There is a specified time period in which the University must respond.