IP: Accessibility of Federally-funded Data

[Dave Farber <farber () cis upenn edu>]

FYI
The American Institute of Physics Bulletin of Science Policy News
Number 4: January 15, 1999

Controversy over Accessibility of Federally-funded Data

"To alter the rules that the scientific community has operated
under for decades without providing them an opportunity to speak
to the need for this change or to participate in developing it,
is not only unwise, it is unfair."    Rep. George E. Brown, Jr.
(D-CA)

Key members of both the scientific and legislative communities
are reacting with alarm to a provision added last year to the
final, omnibus appropriations bill (H.R. 4328).  The provision
might result in federally-funded researchers having to make
available their raw, prepublication data to anybody who requests
it under the Freedom of Information Act (FOIA).  The bill
language calls on the Director of the Office of Management and
Budget (OMB) to revise OMB regulations "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."  Currently,
only the federal agency funding the research can request raw data
from researchers.  

The provision was inserted into the nearly 4,000-page catch-all
omnibus bill by Sen. Richard Shelby (R-AL).  No hearings were
held on the need for, or possible consequences of, such a
provision.  Rep. George Brown (D-CA), Ranking Minority Member of
the House Science Committee, calls it "ironic that a provision
described as a sunshine provision needed to be tucked into a
4,000-page bill in the dead of night."  

The legislation has prompted concerns over the release and
potential misuse of data before it has been peer-reviewed or
published, the effect on intellectual property rights, and the
possible violation of confidentiality of human research subjects. 
Additionally, researchers worry about delay and disruption to
their work by groups with interests inimical to the results of
the research.

Brown has spearheaded legislative opposition to the provision. 
On the first day of the 106th Congress, he introduced H.R. 88, a
bill to repeal the omnibus language.  "This provision should be
repealed," Brown stated, "on the basis of both the flawed process
through which it was adopted and because of the damage it is
likely to do to the publicly funded research structure which we
have developed over the past fifty years....  Obviously, some
groups feel that an information-sharing problem exists," he
noted.  "However, documentation of this problem has been no more
than anecdotal....  We should not jeopardize this [scientific]
enterprise by taking a hasty, ill-considered approach to remedy
an alleged problem."  

Brown was joined by 22 other Representatives in sending a
December 7 letter to OMB Director Jacob Lew, expressing their
concerns and urging Lew to solicit input from all parties before
drafting language to implement the regulation.  The letter was
signed by 17 Democrats and 6 Republicans.  Republican signatories
include John Porter (R-IL), chairman of the appropriations
subcommittee responsible for NIH; James Walsh (R-NY), the
incoming chair of the VA/HUD appropriations subcommittee; and
Science Committee vice chairman Vern Ehlers (R-MI).  Excerpts
from the letter to Lew follow:  

"While we all support the free and open exchange of information,
we have concerns that there may be a number of negative,
unintended consequences for the conduct of research 
under federal awards if this Circular is amended in haste and
without sufficient input federal grant-awarding agencies and
grant recipients.  An amendment of similar intent was offered and
defeated in the House Appropriations Committee one year ago
because of Members' concerns about negative impacts of making
this policy change on federally-funded research.  At that time, a
number of agencies provided comments indicating numerous
potential problems associated with making all data from federal
awards subject to FOIA.  We believe these concerns were and are
still valid."

"One area of concern pertains to research involving human
subjects....  Volunteers currently make agreements with
researchers and their institutions to divulge personal medical
information on the condition that their information will remain
strictly confidential....  Although FOIA provides protections for
some types of information, the provisions may not be adequate to
ensure confidentiality."  

"We are also concerned that this provision could facilitate the
theft of intellectual property....  Mandating the accessibility
of all data produced under a federal award would undermine the
protections for researchers intellectual property rights
guaranteed under copyright and other technology transfer laws."

"We are also concerned about the potential for increases in
administrative burdens and costs for granting agencies and for
award recipients....  While the language of the Omnibus Bill
indicates that agencies could charge a user fee for obtaining
data at the request of a private party, there appears to be no
mechanism available to award recipients to offset the
administrative costs of complying with the required change in
policy."

"The above-mentioned concerns represent a few examples of the
problems that we wish to see avoided in implementing this
provision.  Consequently, we urge you to solicit input from all
federal grant-awarding agencies, and from the higher education,
hospital, and non-profit grant recipient community before moving
forward with this change."

The letter was signed by the following Members of the 105th
Congress:

Howard L. Berman (D-CA)         Sherwood L. Boehlert (R-NY)
George E. Brown, Jr. (D-CA)     Lois Capps (D-CA)
Vernon J. Ehlers (R-MI)         Bob Filner (D-CA)
Maurice D. Hinchey (D-NY)       Steven C. LaTourette (R-OH)
Nita M. Lowey (D-NY)            Carolyn McCarthy (D-NY)
Constance A. Morella (R-MD)     Major R. Owens (D-NY)
John Edward Porter (R-IL)       David E. Price (D-NC)
Lynn N. Rivers (D-MI)           Jose E. Serrano (D-NY)
Louise M. Slaughter (D-NY)      Edolphus Towns (D-NY)
James A. Traficant, Jr. (D-OH)  James T. Walsh (R-NY)
Henry A. Waxman (D-CA)          Lynn C. Woolsey (D-CA)
Albert R. Wynn (D-MD)

It is not clear how much discretion Lew has in developing an OMB
regulation that would be acceptable to all parties.  Also unknown
is how much support Brown can raise for his bill to repeal the
legislation.  

###############
Audrey T. Leath
Public Information Division
The American Institute of Physics
fyi () aip org
(301) 209-3094
http://www.aip.org/enews/fyi/
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