As part of the Fiscal Year (FY) 1999 Omnibus
Appropriations Act (P.L. 105-277), Congress included a provision
introduced by Senator Richard Shelby (R-AL) that for the first time
allows the public to obtain federally funded research data
collected through grants and agreements with universities and other
nonprofit organizations. This provision is supposed to shine a
light on data used to support federal policies, rules, and
findings. Yet some Members of Congress want to reverse this law or
suspend its implementation through the Treasury, Postal and General
Government Appropriations for Fiscal Year 2000 and take away the
public's right to know how tax dollars spent on research influence
policies that affect their lives.
Giving and then taking away the public's
access to information it funded would be a mistake. It also would
be a victory for unelected federal employees as well as special
interest academic elites who spend billions of federal dollars
annually on research that influences policies affecting millions of
Americans; yet they remain accountable to no one. Congress should
work with the Office of Management and Budget (OMB) to implement
the new access policy consistent with public input and drawing on
the investments already made by academic institutions and
professional organizations to develop guidelines to share data.
The Access Provision
P.L. 105-277 requires the OMB to amend Circular A-110, the
Uniform Administrative Requirements for Grants and Agreements with
Institutions of Higher Education, Hospitals, and Other Non-Profit
Organizations, to require "Federal awarding agencies to ensure that
all data produced under an award will be made available to the
public" under the Freedom of Information Act (FOIA). Congress
understood this would cover data not currently covered under the
FOIA and apply to all federally funded data regardless of whether
the awarding agency has them on hand when a request is made. The
Supreme Court, in Forsham v. Harris, 445 U.S. 169, 179-180 (1980),
established that data in the files of an award recipient, but not
in the files of a federal agency, are not available under the
FOIA.
A
recent study for the AEI-Brookings Joint Center for Regulatory
Studies concludes that the Shelby provision does not reflect a huge
change from current data-sharing policies in the academic
community. Federal agencies typically require the results of
research to be published and data made available within a
reasonable period. Researchers make information available according
to university norms of good practices and customs, not because of
the conditions of a federal grant.
If
anything, the access provision simply requires federal awarding
agencies to acquire data paid for by taxpayers. They generally have
not done so because, if they do not have the data, they could not
be forced under the FOIA to produce it. And if agencies cannot be
required to make data available, then they will not be scrutinized
and held accountable. The access provision forces the government to
play by its own rules. If the federal government can force private
institutions to share privately funded research with the public,
then it also can provide the public with research funded by tax
dollars.
Better Decision-making
In FY 1998, the federal government spent more than $76
billion on a significant amount of research influencing policies
that affect such aspects of American life as health, education, the
criminal justice system, and the environment. Broader access to
federally funded research will enhance scientific debate and
promote new research; create caution among researchers about data
of questionable validity; improve public perception of federally
funded research; enhance data gathering and sharing; and help to
define the appropriate roles of private versus public research
ventures. Broader access to federally funded research also will
lead to better policy. Instead of relying on the views of a few
interest groups, decision-makers can gain insight from the broader
public. And proposed policies or regulations will be examined more
critically before they are implemented.
FOIA Protections
Opponents of providing the public with access to federally
funded research argue that the release of such information may not
protect the privacy of research subjects adequately, lead to the
theft of intellectual property rights, and jeopardize trade secrets
and financial data. They fail to acknowledge that the FOIA has a
long history of balancing the public's right to know against the
need to protect sensitive information. The FOIA includes exemptions
to protect sensitive information regarding national security and
law enforcement; trade secrets and commercial or financial
information; personnel and medical files; files "the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy"; and information protected by statute.
Public Response
Congress should work with the OMB to implement an
effective data access policy. On February 4, 1999, the OMB
published in the Federal Register a proposed revision to Circular
A-110 to implement P.L. 105-277; federal awarding agencies would be
required, on a request under the FOIA, to obtain federally funded
published research data and make it available through FOIA
procedures. This provision would apply only to data from published
studies used by the federal government in developing a policy or
rule. The public comment period on this proposed revision closed on
April 5, 1999, after generating more than 6,000 comments, the
majority focused on defining "policy," "rules," and "data," instead
of on the merits of providing public access to such
information.
The
OMB has taken positive steps with its proposed interpretation and
revision to Circular A-110, and Congress is working with the OMB to
develop and refine the data access policy. In an April 5 letter to
the OMB, Senators Shelby, Ben Nighthorse Campbell (R-CO), and Trent
Lott (R-MS) offer guidance on implementing the provision, such as
defining "policy" to include "guidances, risk assessments,
government surveys, and other government findings"; ensuring public
access to federally funded data that are used to support a federal
rule or policy even if that data is not published; and clarifying
that "data should include all information necessary to replicate
and verify the results."
Conclusion
The public believes it should have the right to examine
and question data funded with tax dollars and used to make federal
policy. The Shelby provision is critical for forcing the
development and refinement of federal data access policies by
drawing on the existing work on data sharing done by academic
institutions and professional organizations. There is no need to
waste more money to determine whether taxpayers should have the
right to access federally funded research.
Angela
Antonelli is Director of The Thomas A. Roe Institute for
Economic Policy Studies at The Heritage Foundation.