For most Americans, the Freedom of Information Act (FOIA) is a prominent
safeguard of good government. Since FOIA was enacted in 1966, countless
journalists, advocacy groups, and private citizens from across the political
spectrum have used it to shed light onto government activities, serving
a watchdog capacity that many value.
In a similar vein, full and open access to data is a central pillar of the scientific enterprise. Among scientists, openness is a prerequisite for progress — so much so that scientists in the nuclear weapons complex currently stand accused of putting information sharing with their colleagues ahead of national security interests. And groups such as the National Academy of Sciences and the American Association for the Advancement of Science are actively opposing legislation and treaties that would establish new forms of intellectual property and thus potentially restrict access to scientific databases.
Although the interests of FOIA and those of the scientific community would appear to be closely aligned, they have proven instead to be potentially at odds in the wake of a controversial new law, pushed through Congress last fall by Sen. Richard Shelby (R-Ala.), that would make all data acquired with federal grant money subject to FOIA requests. The resulting imbroglio has left scientists in the awkward position of appearing to oppose giving the public access to the data its tax dollars funded. But scientific support for broad data access remains strong. By opposing the new law, scientists are actually opposing what is an overlay broad solution to a specific problem — indeed, a solution that creates many new, unintended problems.
Senator Shelby’s Solution
The law in question stemmed from a hearing two years ago at which Sen. Shelby asked U.S. Environmental Protection Agency (EPA) Administrator Carol Browner to produce data that were used to develop controversial new Clean Air Act regulations on particulate matter (soot). Browner refused, stating that the regulations were based on published results of epidemiological studies conducted at Harvard University and other institutions under research grants principally from the National Institutes of Health and other agencies. Under existing guidelines for federal grants, Browner said, the data belonged to the universities, not to the federal government.
To correct this situation, Shelby used a closed-door conference on the final version of last year’s massive omnibus appropriations bill to insert a short provision calling on the White House Office of Management and Budget (OMB) to revise Circular A-110, its guidelines for federal grants made to universities, hospitals, and other nonprofit organizations. The provision “require[s] 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.” Under previous Circular A-110 guidelines, only the granting agency could request data from researchers. Buried in the huge spending bill, Shelby’s provision became law on Oct. 21, 1998. When Shelby’s amendment passed, he stated: “This measure was long overdue, and it represents a first step in ensuring that the public has access to all studies used by the federal government to develop federal policy.”
Shelby’s critics were quick to note his use of such a back-door process to pass a good-government law. House Science Committee Ranking Democrat George Brown (Calif.) stated: “It is ironic that a provision described as a sunshine provision needed to be tucked into a 4000-page bill in the dead of night.” More ironic is that the specific problem that caused Shelby’s ire has been solved. Not only did Harvard agree to release the data for reanalysis by an independent research institute approved by both EPA and the automobile industry, but the Supreme Court overturned the EPA particulate-matter regulations in May.
Other than the manner in which it was enacted, what is so bad about this new law? First off, scientists argue, FOIA requests could be used to obtain scientific data in advance of publication, short-circuiting the current peer-review system. They also warn that some could use FOIA requests to harass researchers working on controversial topics, repeatedly forcing them to turn over computer files, field and lab notebooks, and other data in an effort to stall or distort their research.
Biomedical researchers warn that releasing patient data to federal agencies could violate confidentiality agreements and make it more difficult to attract volunteer research subjects. Furthermore, scientists using joint industry-government funding caution that they could be forced to reveal proprietary information to a company’s competitors, the threat of which would chill corporations’ interest in funding such projects.
Within the geosciences, paleontologists have pointed out another unintended consequence of the law. Because vertebrate fossils now command prices akin to those for fine art, researchers often withhold specific location data on fossil sites from their published work. Using a FOIA request, commercial collectors could obtain that information and cart away scientifically important specimens.
The passage of the Shelby law leaves OMB with the responsibility of drafting revised guidelines for Circular A-110. In doing so, OMB sought to address scientists’ concerns. OMB released an initial draft in February, allowing 60 days for public comment. The draft narrowed the law’s scope by making data accessible to FOIA requests only after research findings had been published and used by the government “in developing policy or rules.” Scientific groups remained critical, viewing the draft as still being overly broad. They sought to flood OMB with critical comments but were surprised to find that the current was running against them. Indeed, over half of the more than 10,000 comments OMB received favored the revision. A June 7, 1999, Wall Street Journal editorial opined, “We are having a little trouble working up much sympathy for a scientific community that for years seemed to think that once it mailed its work from the ivory tower, it bore no responsibility for how politicized bureaucracies used it.” Also, organizations and commercial interests eager to rein in EPA, such as the American Petroleum Institute and the National Association of Manufacturers, have strongly supported the Shelby law and the revised Circular A-110 guidelines.
The sheer volume of comments received was sufficient to convince OMB that a second draft, followed by another round of public comment, was in order. The new draft was expected last month. For an update on its status, visit <http:// www.agiweb.org/gap/legis106/foia.html>.
A New Alternative in Congress
Even as OMB continues its efforts to comply with the new law, some in Congress have been busy trying to defeat, or at least to delay, its implementation. After efforts led by Brown to repeal the Shelby provision failed to garner significant support, the focus shifted to passing language that would delay implementation of the revised circular until next year and to commission a study by the National Academy of Public Administration (NAPA) on how federally funded research data should be made available to the public.
Reps. James Walsh (R-N.Y.) and David Price (D-N.C.) have added such an amendment the House version of the Fiscal Year 2000 Treasury and General Government appropriations bill. The Walsh-Price amendment, however, faces many hurdles to successful passage and will at most delay, but not stop, the promulgation of the new OMB guidelines.
Scientists Must Engage
Even if the Shelby law is modified or delayed, it is not going away. Moreover, the frustration Sen. Shelby and his supporters felt is real, and scientists ignoring the underlying concerns do so at their own peril. That said, scientists are justified to fear harassment and other misuse of the Shelby law, and they should have a say in how greater openness can be achieved. But to have that say, scientists can no longer view their responsibilities as beginning with funding and ending with publication. Instead, they must be responsible for communicating the implications of their work to policy-makers and to the public, thus helping combat misuse of science in the political arena. That is a big responsibility.
AGI Director of Government Affairs