NAS President's Statement on FOIA Initiative Relating to Release ofData re Federal Funded Research

[Mike Grissom <mikeg@SLAC.Stanford.EDU>]

Radsafe'rs,

*This is a long post, but may be of particular interest
for those following the NRI related thread.*

The following letter (extract) may be of topical
interest, especially for those engaged in
radioepidemiological activities and other forms of
health effects research (and in fact all kinds of US
federally funded research). The issue of when and how
data needs to be released, possibly including BEFORE
publication or final approval/peer review, is the
point of concern.

S.,

MikeG.

----------
January 26, 1999

The Honorable Jacob J. Lew
Director
Office of Management and Budget
Old Executive Office Building, Room 252
Washington, D.C. 20503

Dear Mr. Lew:

On behalf of the Council of the National Academy of
Sciences, I am writing to you concerning the new
legislation that directs you to amend OMB Circular
A-110 "to require Federal awarding agencies to ensure
that all data produced under an award will be made
available to the public through the procedures
established under the Freedom of Information Act...."
...[snip]
The serious problems that the new legislation is likely
to cause for federal grantee research include the
following.

One of the most troublesome aspects of the application
of FOIA to federal grantee research data is the
possibility that FOIA may not allow a federal research
grantee to publish the results of his or her research
in scientific journals before the underlying research
data must be made available to the public under FOIA.
This problem results directly from the holding in Burka
v. U.S. Dep’t. of Health and Human Services, 87 F.3d
508, 521 (D.C. Cir. 1996), that research data could not
be withheld under FOIA so that researchers could
publish their results because there is no "established
or well-settled practice of protecting research data in
the realm of civil discovery on the grounds that
disclosure would harm a researcher’s publication
prospects."

Publication of research results in peer-reviewed
scientific journals is one of the most critical elements
of the research process. It is the means by which new
discoveries are communicated to others in the
scientific community and to the public at large.
Permitting the researcher who actually collected the
data to be the first to analyze and publish conclusions
concerning the data is an essential motivational aspect
of research. Requiring public release of data prior to
publication in scientific journals would seriously
short-circuit the scientific research process that has
been so effective in the United States. Moreover, it
would severely disadvantage federally funded scientists
while providing unreasonable advantages to their
competitors, both in the United States and
internationally. Premature release of research data
before careful analysis of results, and without the
independent scientific peer review that is part of the
normal process of publication of scientific research,
would also increase the risk of public disclosure of
erroneous or misleading conclusions and confuse the
public, which would not be in the public interest.

The application of FOIA to all federally funded research
grantee data will also be greatly complicated by the
fact that there are currently tens of thousands of
federally funded research grantees engaged in tens of
thousands of research projects. One cannot overemphasize
the staggering volume, complexity, and variety of
federal grantee research data being generated by
astronomers, molecular biologists, atmospheric chemists,
high energy physicists, geoscientists, clinical
investigators, plant biologists, materials scientists
and engineers, etc. The complexities of individual
scientific fields are often so great that only
scientists working in those fields will really
understand the details of their particular field of
research and the data being generated. The effective
application of FOIA to data of such diversity and
complexity will be very difficult, if not impossible, to
achieve. It is certain to be very costly to both
research institutions and the federal government.

This situation is further exacerbated by the fact that
the term "data" in the new legislation is not defined.
Under current agency regulations, the term "data" may
not be limited to information resulting from original
observations and measurements. The definition of "data"
under some agency regulations is very broad,
encompassing not only data in the conventional sense but
all recorded information in all media including such
items as computer programs, copyrightable works, and
procedural manuals. Under an expansive definition of
"data," drafts of research papers, for example, might
be available to the public under FOIA even before the
drafts are finalized and published, potentially
confusing the public and unfairly penalizing the
researcher. Important legal rights in certain kinds of
"data" might be altered or impaired. Burdensome
disputes and uncertainties over the scope of the term
"data" and its application are inevitable.

It is also unclear whether the new legislation is
retroactive. Is FOIA now suddenly to be made applicable
to all existing federal grantee research data? And if
not, how will "new" data be distinguished from "old"
data in research projects that are currently ongoing?

The new legislation seemingly transforms all federal
research grantee data into "agency records" for purposes
of FOIA. But federal research grantees are generally not
well-equipped by inclination, training or experience to
deal with the legal and definitional subtleties of
"data" and the bureaucratic responsibilities that go
with being custodians of "agency records" nor with the
very substantial financial and administrative burdens of
doing so. The net result will be a major shift of
valuable intellectual and financial resources away from
scientific research and into disruptive paperwork
production. Frequent FOIA requests for data by
particular interest groups and individuals might even be
used as an effective means to discourage certain
research, attack ongoing research, or delay the
publication of research results.

FOIA contains a number of exemptions from its public
disclosure requirements which are designed to balance
various legitimate interests in confidentiality of
information with the public’s right to know and are
very important to making the statute work effectively.
It is unclear, however, whether these exemptions will
apply to federal grantee research data under the new
legislation since the legislation refers only to
"procedures established under [FOIA]" and not to FOIA
itself and the FOIA exemptions. But even if the
exemptions do apply, they are seriously inadequate for
protecting the legitimate interests of federal research
grantees.

For example, as noted above, FOIA may not allow a
federal research grantee to publish the results of his
or her research in scientific journals before the
underlying research data must be made available to the
public under FOIA. In addition, although FOIA protects
certain trade secrets and commercial or financial
information from public disclosure, this provision may
have only limited application in the case of federally
funded grantee research. See Washington Research Project
v. Dep’t. of Health, Education and Welfare, 504 F.2d
238, 244 (D.C. Cir. 1974), cert. denied, 421 U.S. 963
(1975) ("a noncommercial scientist’s research design is
not literally a trade secret or item of commercial
information, for it defies common sense to pretend that
the scientist is engaged in trade or commerce"). Thus,
legitimate interests of federal research grantees
regarding the confidentiality of certain kinds of
information may not be respected because these issues
simply are not addressed by FOIA as presently written.

FOIA protects the confidentiality of personnel and
medical files and similar files if the disclosure of
such files would constitute a clearly unwarranted
invasion of personal privacy. But regardless of whatever
legal protection this may provide for the
confidentiality of such information, individuals who now
provide invaluable personal information for medical and
other forms of federal grantee research may be
disinclined to continue to do so in the future if such
information will now be subject to even the possibility
of public access under FOIA.

...[snip]

We urge your thoughtful consideration of these issues.

Sincerely,

Bruce Alberts
President

----------
The above may be viewed on the Web at:

	http://www.nas.edu/includes/letter.htm

The related Federal Register announcement was recently
posted soliciting comments from the public:

>Federal Register: February 4, 1999 (Volume 64,
> Number 23)
>Notices
>[Page 5684-5685]
>From the Federal Register Online via GPO Access
>[wais.access.gpo.gov]
>[DOCID:fr04fe99-99]
>
>OFFICE OF MANAGEMENT AND BUDGET
>
>OMB Circular A-110, ``Uniform Administrative
>Requirements for Grants and Agreements With
>Institutions of Higher Education, Hospitals, and
>Other Non-Profit Organizations''
>...[snip]

Many organizations including the American Institute
of Physics (AIP) are encouraging their members to
write in reponse to this solicitation for comments
before the April 5, 1999 public comment expiration
period.

----------


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