Example of a Common Publication/Participation Restriction
Appendix to Policy
The most commonly encountered restrictive term that can impact open research is the “7000 clause” appearing in most Department of Defense (DoD) contracts (and related subcontracts):
252.204-7000 DISCLOSURE OF INFORMATION (OCT 2016).
(a) The Contractor shall not release to anyone outside the Contractor's organization any unclassified information, regardless of medium (e.g., film, tape, document), pertaining to any part of this contract or any program related to this contract, unless -
(1) The Contracting Officer has given prior written approval;
(2) The information is otherwise in the public domain before the date of release; or
(3) The information results from or arises during the performance of a project that involves no covered defense information (as defined in the clause at DFARS 252.204-7012) and has been scoped and negotiated by the contracting activity with the contractor and research performer and determined in writing by the contracting officer to be fundamental research (which by definition cannot involve any covered defense information), in accordance with National Security Decision Directive 189, National Policy on the Transfer of Scientific, Technical and Engineering Information, in effect on the date of contract award and the Under Secretary of Defense (Acquisition, Technology, and Logistics) memoranda on Fundamental Research, dated May 24, 2010, and on Contracted Fundamental Research, dated June 26, 2008 (available at DFARS PGI 204.4(DFARS/PGI view)).
(b) Requests for approval under paragraph (a)(1) shall identify the specific information to be released, the medium to be used, and the purpose for the release. The Contractor shall submit its request to the Contracting Officer at least 10 business days before the proposed date for release.
(c) The Contractor agrees to include a similar requirement, including this paragraph (c), in each subcontract under this contract. Subcontractors shall submit requests for authorization to release through the prime contractor to the Contracting Officer.
Briefly summarized, this clause establishes a default requirement for prior DoD approval to release or publish any contract-related information, including research results.
In practice, the University is often able to make use of the exempting language offered in subparagraph (a)(3), when SPA "scope[s] and negotiate[s]" the project to constitute unrestricted "fundamental research." In such cases, the dissemination restriction in the 7000 clause is rendered inactive, and no conflict with the Openness in Research Policy arises.
There have been instances, however, in which SPA could not obtain agreement from DoD (or the prime contractor) on "fundamental research." This typically occurs when the work involves critical applied technologies having national security implications, such as military aerospace R&D or cutting-edge encryption. In such cases, PIs have had to decide whether to decline the award because of the publication, access, and related security restrictions, or to pursue an Openness in Research Policy exception and take any steps required by regulation and contract to secure the research.