Faculty members and others have two weeks to respond to the latest version of the White House Office of Management and Budget (OMB) initiative to make federally funded scientific data available to the public under the Freedom of Information Act (FOIA).
Scientists worried that the original wording would have required researchers to make data available to the public before it was published in a scientific, peer-reviewed journal, and may have compromised confidentiality issues or trade secrets.
On August 11, the OMB issued for public comment a new proposed version of regulations governing the availability of federally funded research data. The OMB plans to publish a final version of the regulation on or before September 30, and must receive all additional comments by Friday, September 10.
Preliminary responses from the academic community indicate that the new version is better than the previous one, although concerns remain that the original legislation may need to be modified for legal reasons. John C. Crowley, director of MIT's Washington office, pointed out that the number of comments received on both sides has had political effect both in Congress and in the OMB on this unusual issue.
"On this occasion, individual faculty letters in support of OMB's treatment are encouraged," he said. "Numbers will count."
"We believe that this proposed revision meets the intent of the original provision while recognizing the complexity of the research process and the nature of research data," wrote David Litster, vice president and dean for research, and Julie Norris, director of the Office of Sponsored Programs, in response to the latest version.
"We are encouraged by OMB's clarification to ensure public access to research data without upsetting the traditional scientific process, specifically in restricting the availability of data while research is still ongoing and allowing the need of researchers to secure confidentiality of personal privacy and confidential business information," they wrote in a recent letter to OMB.
The original action to subject research data to FOIA regulations was taken by Sen. Richard C. Shelby (R-AL) when Harvard School of Public Health researchers, citing confidential patient information, declined to give Congress their raw data in a two-decade-long pollution study. The study, sponsored by the Environmental Protection Agency, was instrumental in creating a 1997 federal regulation that required stronger controls on sources of small particle emissions.
Sen. Shelby argued that businesses should be able to get the raw data themselves for analysis and reinterpretation.
OMB received more than 9,000 comments on the first proposed revision last February to Circular A-110, which started out as a one-sentence amendment to a 4,000-page appropriations bill passed in October 1998. Approximately 55 percent supported the proposed revision and 37 percent opposed it. After reviewing the feedback, OMB felt it necessary to develop clarifying definitions for some terms such as "research data" and "published."
The wording now applies to "research data relating to published research findings produced under an award that were used by the federal government in developing a regulation."
Research data is defined as "the recorded factual material commonly accepted in the scientific community as necessary to validate research findings, but not any of the following: preliminary analyses, drafts of scientific papers, plans for future research, peer reviews or communications with colleagues.
"This 'recorded' material excludes physical objects (e.g., laboratory samples). Research data also do not include: trade secrets, commercial information, materials necessary to be held confidential by a researcher until publication of results in a peer-reviewed journal, or information which may be copyrighted or patented."
Professor Litster and Ms. Norris said that this section is a "welcome clarification. Similarly, faculty and other researchers are pleased with the acknowledgement that the definition of 'published' is restricted to that which appears in a scientific journal or when a federal agency officially cites the research findings in support of an agency regulation.
"This is particularly important, we believe, in the case of preliminary results discussed at meetings or with colleagues in an informal and exploratory manner, but for which the research has not been completed or final outcomes validated prior to formal publication or dissemination of the results," they wrote.
According to OMB, it has "used its discretion" to attempt to "balance the need for public access to research data with protections of the research process."
The matter of cost reimbursement for FOIA requests is still a sticky issue. Professor Litster and Ms. Norris contend that charges for FOIA activities should not be made against a currently active award because "funds awarded for research should be used for that purpose and not to provide data necessary in a FOIA response."
The revision states that "if the federal awarding agency obtains the research data solely in response to a FOIA request, the agency may charge the requester a reasonable fee equaling the full incremental cost of obtaining the research data. This fee should reflect costs incurred by the agency, the recipient and applicable subrecipients." In effect, the latest revision calls for the person requesting the information to pay for gathering and disseminating it.
Those interested in responding to the latest version should direct their comments to F. James Charney, policy analyst, Office of Management and Budget, Room 6025, New Executive Office Building, Washington, DC 20503, or by e-mail (as message text but not as an attachment) to firstname.lastname@example.org.
The texts of both versions of the proposed revision, as well as background and supplementary information, can be found on OMB's home page under "Grants Management" at http://www.whitehouse.gov/OMB/fedreg/2ndnotice-a110.html.
A version of this article appeared in MIT Tech Talk on September 25, 1999.