Extending FOIA to Research Data

By Lisa Thompson

The Office of Management and Budget recently issued the latest draft of revised rules that would expand public access to federally funded research data. The rules stem from a provision, inserted by Senator Richard Shelby (R-Alabama) in a 1999 appropriations bill, that charges OMB to extend the Freedom of Information Act (FOIA) to cover research data collected under federal grants and contracts to nonprofit organizations. FOIA currently requires federal agencies to provide any non-exempt data to anyone who requests it. (Exemptions from the requirement have been established to protect individual privacy and proprietary interests, among other things.) The revised rules and OMB's request for comment can be found at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=1999_ register&docid=99-20683-filed

The university community has been working both to soften the rules and to get the Shelby provision repealed. It is feared that the new data requirements will impose onerous and unfamiliar administrative burdens on universities; will be a disincentive in attracting volunteers for health research studies and clinical trials; will have a chilling effect on university-industry cooperation; and could lead to harassment of researchers in controversial areas.

Earlier this year, the late Representative George Brown (D-California) introduced a bill (H.R. 88) that would repeal the Shelby provision. (CRA has endorsed H.R. 88.) A recent hearing on the bill, held by the House Subcommittee on Government Management, Information, and Technology, provoked a lively debate (http://www.house.gov/reform/gmit/hearings/testimony/990715h.htm). On another front, an amendment to postpone implementation of the new regulations for one year was recently defeated by the House Appropriations Committee.

Proponents of the Shelby provision argue that the public has a right to see research data that it pays for. They are particularly concerned about research used in developing federal regulations. There have been a number of high-profile incidents in which the Environmental Protection Agency justified expensive regulations on the basis of research conducted under contract and then claimed it was not required to release the data, even to outside reviewers, because it belonged to the contractor.

Opponents of the bill have a formidable challenge in the face of strong anti-regulatory sentiment in Congress. The OMB intends to complete the rule-making process by the end of September.