Advocacy Archive

FOIA Access to Research Data
APS Comments on Proposed Federal Regulations

April 5, 1999

Mr. F. James Charney
Policy Analyst
Office of Management and Budget
New Executive Office Building, Rm. 6025
Washington, DC 20503

Re: Proposed Revisions to OMB Circular A-110

Dear Mr. Charney:

We appreciate the opportunity to submit comments on the proposed revisions to OMB Circular A-110, as set forth in the Federal Register (Vol. 64, No. 23) on February 4, 1999. Our views are presented below.

The proposed revisions to OMB Circular A-110 should be withdrawn. The impact and implications of the revisions and the underlying statute must be more fully evaluated in Congress, in Federal agencies, and in the scientific community.

The proposal to allow Freedom of Information Act (FOIA) access to research data raises fundamental policy questions about the relationship between the federal government and science. It also would create a number of administrative requirements placing an enormous burden on both federal granting agencies and grant recipients. We do not believe that the revisions to OMB Circular A-110 adequately address these issues, nor do we think that is possible, given the problems in the underlying statute.

The statute mandating FOIA access to data was enacted without the benefit of anything remotely like an open process. The scientific community and those members of Congress most familiar with science had no opportunity to consider the impact of this approach prior to its last-minute, dead-of-night enactment as part of the omnibus legislation passed in the hectic final hours of last year's session. Legislation and its implementing regulations are usually the end-points of a deliberative process. Instead, these proposed regulations are the starting point, the first time discussion on this issue has been allowed. In the interest of fairness, we call on OMB to postpone further action on the Circular A-110 revisions until all of the issues involved have been fully evaluated in an open process, one in which policy makers can take into account the history and underlying intent of the statute as well as the specific impact on science and the federal government. A single legislator's act to change general law by imposing his idiosyncratic perspective on data sharing simply should not be allowed to stand.

To illustrate the need for additional consideration, I have outlined just a few of our many concerns about the specifics of the proposed revision to OMB Circular A-110:

The revisions represent an inappropriate use of FOIA and will not promote data sharing.

The FOIA is designed to provide citizen access to agency records. However, research data are not federal property. Data are owned by the grant recipient. Data sharing and data access are central to scientific progress and for advancing knowledge in a particular area, and dissemination of scientific knowledge is critical to the improvement of health and well-being of our Nation's citizens. But those are separate issues: the promotion of data sharing and dissemination of scientific knowledge are not the intent of the statute, the proposed revisions to Circular A-110, or of the FOIA process. Determination of access to data should be made on the basis of scientific criteria, and there is a clear federal role in providing resources and developing guidelines for data-sharing activities. The FOIA is not the mechanism through which this can or should be accomplished.

The revisions do not provide a definition of "data," raising concerns that any information developed in conjunction with a research project would be affected.

Depending on how broadly "data" are defined, the proposed revisions to Circular A-110 would create profound problems for the scientific community. Data are not just a single set of numbers or facts produced at the end of a research project. Information is collected, analyzed and refined throughout a multi-stage process that is governed by the principles of scientific methodology and is validated through peer review and publication. Would FOIA access extend to all data associated with a research project, such as individual laboratory notebooks, videotapes of families interacting, interim reports and preliminary presentations at scientific meetings, to name just a few examples? Would it allow access to data in longitudinal or other long-term research projects prior to the completion of those projects?

We oppose any efforts to force the release of these data under these circumstances because of the enormous potential for abuse, either by invested parties or ideologically-based groups whose goal is to disrupt a particular project on a topic with which they disagree, or by competitors who want to gain access to data for their own advancement. In addition to the direct harm this would cause to specific research projects, there are serious implications for science more generally: Scientific careers would be jeopardized by the premature release of data, plus scientists may be less willing to conduct high-risk or cutting-edge research under the possibility that their intellectual property rights would be violated.

Let me be clear. Our position is that the scientific community should work with federal science agencies to establish guidelines for data-sharing, and we encourage increased federal support of dissemination of scientific information to the public. But this misguided and meanspirited law is not the way.

The revisions would pose enormous economic and administrative burdens on federal agencies, on research institutions, and on individual investigators.

Apart from the impact on scientists' ability to conduct research, the cost of complying with FOIA requests for access to research data would be prohibitive for the affected parties even if "data" are narrowly defined. Since data are the property of grant recipients, agencies would be required to establish costly mechanisms for the transfer and maintenance of data in response to FOIA requests. The establishment and implementation of these procedures would divert significant amounts of valuable resources away from the direct support of scientific research. On the other side, universities would incur enormous legal and administrative expenses to respond to FOIA requests. And small laboratories and individual investigators would be most at risk. Among other things, they typically cannot afford the personnel and other resources needed to create and maintain archives for long periods of time. Further, even if the recovery of FOIA costs from the requester is allowed, there is no guarantee that those costs will be used to reimburse the federal agencies, universities, or scientists that originally bear the costs.

The possibility of FOIA access to confidential and other sensitive information would discourage people from volunteering as research subjects.

This is a particular concern for psychological scientists and others who study human behavior. Such research often involves collection of sensitive and confidential information, and researchers must be able to guarantee the confidentiality of that information. If confidential data were transferred to a federal agency, the researcher has no ability to enforce that guarantee. Even if researchers are able ultimately to protect the information given by a research subject, the mere possibility that there could be public access to such records is likely to discourage many potential research volunteers. This would be a devastating blow to an area where recruitment and retention of research subjects is already a difficult enterprise because of the sensitivity of some of the research topics being addressed.

I would be pleased to clarify or elaborate on any of these points. And again, I urge you in the strongest possible terms to delay any further rulemaking until these and other critical issues raised by the proposed revisions to Circular A-110 can be fully addressed.

Sincerely, Alan G. Kraut, Ph.D.
Executive Director
American Psychological Society