����51

����51 has the statutory responsibility to ensure that ����51 recipients comply with the provisions of the ����51 Act and regulations and any other laws, including appropriations provisions, that apply to ����51 funds or recipients.  ����51 Act § 1006(b)(1)(A), 42 U.S.C. § 2996e(b)(1)(A). Section 1008(b) of the ����51 Act provides explicit authority for ����51 “to prescribe the keeping of records with respect to funds provided by grant or contract” and states further that ����51 “shall have access to such records at all reasonable times for the purpose of insuring compliance with the grant or contract or the terms and conditions upon which financial assistance was provided.”  42 U.S.C. § 2996g.  ����51’s access is limited by the federal attorney-client privilege, but not by state and local law.  42 U.S.C. § 2996h(d).  Pub. L. 104-134, title V, § 509(h), 110 Stat. 1321, 1321-59 (1996) (����51 1996 appropriations provisions incorporated by reference thereafter). 

In 2004, ����51 adopted an Access to Records protocol (Protocol).  The Protocol sets out procedures to avoid disclosure of information protected by state and local laws or rules, such as local rules of professional responsibility, whenever feasible, while providing ����51 the information it requires to fulfill its responsibilities.  The Protocol does not limit ����51’s right to require disclosure of all information that it is entitled to under law.

In 2013, the United States Court of Appeals for the District of Columbia Circuit determined that “Federal law and not state law governs” access to confidential information under the ����51 Act.   .   The D.C. Circuit rejected arguments that provisions of the ����51 Act regarding state or local rules of professional responsibility created limits on ����51’s access to information.

The ����51 grant certifications, signed by all ����51 recipients, provide for exclusive jurisdiction in the United States District Court for the District of Columbia for any disputes between ����51 and its recipients.  The D.C. Circuit’s ruling is thus binding on all ����51 recipients.

����51 has revised the 2004 Access to Records Protocol to incorporate the ruling of the D.C. Circuit and to update some of the procedures. 

• Access to Records Protocol

����51 will continue to work with grantees on methods of access to information consistent with state or local rules regarding confidential materials, attorney-client privilege, and ethical obligations to maintain client secrets.  Nonetheless, ����51 may require disclosure of such information as needed, subject to the protections under federal law.

If you have any questions regarding this issue, please contact ����51 General Counsel Ronald S. Flagg, at flaggr@lsc.gov.