Page updated May 19, 2009

 Nondisclosure Agreements with UMTRI

Background

We must comply with the Freedom of Information Act

What we cannot release

We must comply with policy set by elected officials, the Regents

The University does not publish all of the information in its possession

Summary

Further Information & Sample Agreement

Background

The note was written by Paul Green, a research professor at the University of Michigan Transportation Research Institute, and reflects his impression of University nondisclosure agreements. The official University views can be obtained from the project representatives ("the lawyers") in the University's Research Administration Office as described at the end of this section.

This section explains where University constraints exist and why, so as to provide a basis for quickly reaching an agreement with an industrial or other sponsor. An example agreement can be downloaded at the bottom of this page and may serve as a starting point for discussion. Although there are certain constraints that the University of Michigan must fulfill in its role as a public institution and university, the University is ALWAYS willing to discuss how a nondisclosure agreement might be fashioned to jointly satisfy the needs of the sponsor and the University. Most of the discussion points that potential sponsors raise are common to all university nondisclosure agreements and are not necessarily unique to the University of Michigan.

By design, universities are open organizations that encourage the free flow of information. Public access is unrestricted for most buildings, though laboratories are usually locked. There are no campus entrance guards and a visitor's pass is not required. Students, who come from all over the world, leave every few years. For those and other reasons, secret military research and classified industrial research, both requiring the same security constraints, are rarely conducted on college campuses unless an unusually strong argument can be made for significant national interest. In general, if an organization wants to keep something totally secret, they should not be working with a university.

The actions of the University of Michigan must comply with state and federal laws, and the policies of the Regents of the University. The University of Michigan is a public organization and part of the State of Michigan. Accordingly, it must comply with the laws of the State of Michigan and those laws may take precedence is some situations. Many other public universities have similar constraints.

Back to Top

We must comply with the Freedom of Information Act

As an agency of the State of Michigan, we must comply with both the federal and state freedom of information acts. These acts stipulate that some types of specifically requested information must be released to people outside the University. These acts list how requests should be made, what items are covered, the time frame in which a response must occur, and the amounts requestors can be charged. The University is not required to, and does not release, all information requested.

Federal Freedom of Information Act

Michigan Freedom of Information Act

http://www.research.umich.edu/policies/state/FOIA_CRIA.html

http://www.umich.edu/%7Eurel/foia.html

Back to Top

What we cannot release

The University does not release any confidential information provided by the sponsor. Furthermore, the University cannot release raw experimental data or other information that might invade the privacy of subjects, a practice consistent with the requirements of the Institutional Review Board (the Human Subjects Committee), a group that follows federal guidelines.

In addition, confidential crash data may be obtained in studies, and that information is protected from subpoena by what is commonly referred to as the "Highway Safety Research Institute (HSRI) Law" (Michigan Public Act 26 of 1980). This Law, referred to by UMTRI's original name, allows the state Office of Highway Safety Planning to protect certain research data from subpoena. There is a formal application process for each project. The original application of this law was for interviewing those involved in crashes. Those individuals are more likely to be honest if what they said could not be used against them in legal matters. Potentially this law could be applied more broadly to other situations where establishing the scope of problems and how they might be resolved is more important than blame or responsibility.

Back to Top

We must comply with policy set by elected officials, the Regents

The University must comply with the policies of the Regents of the University, the body of officials elected by the voters of the State of Michigan to manage the University. One of Regents' policies deals with research grants, contracts and agreements (see policies). Those policies were designed to support the University's mission to generate and disseminate knowledge in the public interest in a manner consistent with the principles of open scholarly exchange and academic freedom.

More specifically, the Regents' policy prohibits the University of Michigan from entering into agreements where the University cannot (1) identify that an agreement with a sponsor exists, (2) identify the name of the sponsor, or (3) provide a brief description of the research to be conducted. That is, secret agreements are not allowed. However, the details of the work proposed can be confidential. This policy is common among universities.

The University of Michigan does not engage in agreements that unreasonably restrict it from publishing the results of its efforts. In general, the University is willing to forgo initiating the publication process until approximately 6 months after a project is completed. This time frame should be adequate for the sponsor to obtain its competitive advantage and is consistent with the practice of most universities. The actual competitive advantage to a sponsor is much larger than that time frame as the sponsor should be receiving feedback on the findings of the work as it is ongoing. Furthermore, usually 6 to 18 months elapse between when a proposed publication is submitted to review and the publication appears in print. If there is a product resulting somewhat beyond the normal publication time horizon, publication can be delayed until the affected product is produced. However, should that timeframe be quite long (e.g., 5 years) reaching an agreement may be a challenge. We do not seek out to inform competitors of a sponsor's research, so considerable time can elapse between when a publication is released and a competitor learns of that publication.

Back to Top

The University does not publish all of the information in its possession.

The University does not publish everything it does. Often, small scale product evaluation efforts do not merit publication. Furthermore, in such cases, the work product may be a letter (not circulated), not a technical report written for distribution.

If the sponsor provides confidential information (and it is marked confidential and is not elsewhere in the public domain), that information can be published only with the sponsor's permission. It is highly unusual for the University to request the release of confidential information. If requested by a sponsor, a draft of a publication can be sent to them for review, and if they believe confidential information is being revealed, there is a process and time frame to resolve their concerns and result in revisions.

We only publish information that is essential to understanding the human factors aspects of the research. So, if a sponsor would provide product plans, software to implement product features, or related information not needed to understand the human factors aspects of the research, that information will not appear in publications. We do not present confidential hardware in demonstrations.

Further, it must be emphasized that we have no obligation to publish (unless so required by an agreement), but the performance (and salaries) of the University staff (especially professors, research staff, and graduate students) is determined by the number and quality of their publications. If the research staff does not publish, then those staff will be unemployed and their units will be dissolved. Publications also serve as advertising for future work.

Publications include technical reports, commonly the project deliverable, and proceedings papers and journal articles. The later two types of publications, those that may receive the widest dissemination, are generally produced after a project is completed unless they are a contact deliverable. Generally the process of writing them begins well after the publication lock out time frame has elapsed, and then only if the researchers have the time.

Back to Top

Summary

Thus, the University of Michigan policy on nondisclosure agreements is similar to that of all universities, and because of their common mission to advance knowledge, have similar constraints on what they can do in secret. Universities must comply with the Freedom of Information Act and the rules of their governing boards. However, some information is automatically protected by rules having to do with confidential subject information and in the case of the University of Michigan, data collected may be afforded special protection by the HSRI Law. Information marked confidential by sponsors is also treated. The University has a consistently positive track record in establishing confidentiality agreements with sponsors. Information that is truly confidential will be protected.

Back to Top

Further Information & Sample Agreement

The staff in the University research administration office is always willing to discuss sponsor concerns and seek solutions. For further information on confidentiality issues, sponsors are encouraged to read the Regents Policy on such agreements referred to earlier, look at the sample nondisclosure agreement that follows, or to contact the University's research administration office ("the contracts office") at (734) 764-7250 for clarification. Our goal is to develop workable, mutually satisfactory agreements and we believe that is almost always possible.

Download Sample
Non-Disclosure Agreement

PDF

Word 95/6.0
(.zip)

Word 95/6.0
(.sit)

Back to Top