American Institute of Physics Comments
(1999)
American Institute of Physics
Bulletin of Science Policy News, Number 40, March 19, 1999
http://www.aip.org/enews/fyi/1999/fyi99.040.htm
FYI
The American Institute of Physics Bulletin of Science Policy News
Number 40: March 19, 1999
Deadline Coming Up on Data Accessibility Regulation
Comments on the proposed changes to the OMB regulations regarding
the accessibility of federally-funded data must be received by April 5
-- eighteen days from today. The proposed revisions, as described in
FYI #18, have caused many in the scientific community to express
concern about the impact which these changes might have on the conduct
of scientific research.
Several weeks ago the American Association for the Advancement of
Science held a briefing on the proposed revisions. A legislative
assistant for Senator Richard C. Shelby (R-Alabama) was the first
speaker; Shelby was responsible for the provision requiring OMB to
draft this revision. The staffer said that Shelby was surprised by the
reaction to the proposed revision. She outlined the legislative history
of this revision, which dates to a 1997 controversy over proposed EPA
ozone standards. The staffer called this revision just a small step to
ensure public access, in order to make research subject to duplication
and validation. The law is intended, she said, to make all
federally-funded data subject to the Freedom of Information Act not
just that used as a basis for standards. Shelby's staffer did not a
ready answer to concerns about how this might affect the disclosure of
commercially-valuable information, and agreed that the cost of
compliance with this regulation is a legitimate concern.
Other speakers at this briefing included a staffer from the House
Science Committee Minority Staff, who criticized the lack of public
hearings on the provision. She said the Freedom of Information Act was
the wrong way to address this issue, and raised points also discussed
by others from the National Institutes of Health and the University of
Chicago. The President of the Chemical Industry Institute of
Toxicology, while acknowledging that the scientific community has
failed to develop procedures for the sharing of data, called for a
"time-out" to allow the community to deal with this problem. A speaker
from OMB "believes we are out of time-outs...we must move forward."
Under the OMB schedule, a second notice will be issued in the Federal
Register addressing the public comment OMB receives what this notice
will say is unknown. There will be another comment period. OMB plans to
codify this regulation by September 30, the end of the fiscal year. He
added, importantly, that it took most federal agencies "years" to
implement the last revisions made in the A-110 circular.
Comments must be received by April 5. OMB "encourages interested
parties to provide comment at this time so that any concerns may be
addressed in OMB's development of the final revision...." One of those
expressing concern is NSF Director Rita Colwell, whose February 22
letter to the Director of the Office of Management and Budget (OMB) is
below:
Dear Mr. Lew:
I am writing in regard to recent proposed changes to OMB Circular
A-110 concerning access to research data generated through federal
assistance.
The National Science Foundation has long encouraged the broad
dissemination of NSF-funded research data in support of the science and
engineering enterprise. NSF's current data access policy--which is
clearly stated in a specific provision in our grants--promotes free and
open exchange by expecting researchers to promptly publish their
findings and share their data and supporting materials with other
researchers. This policy has been successful, and we expect it to
continue.
I understand that P.L. 105-277 specifically directs OMB to apply the
Freedom of Information Act (FOIA) procedures to data produced under
federal awards for the purpose of improving dissemination of federally
supported data. I appreciate your efforts to limit the scope of the
proposed rule regarding the use of FOIA to "published research
findings" and only for instances where data are used in "developing
policy or rules." This language may help avoid untimely release of raw
data by researchers as well as limit the proposed rule's application to
specific studies.
I remain concerned, however, that the proposed revisions are unclear
and open to different interpretations that could ultimately harm the
research process. For example, it is unclear what constitutes "data" in
the proposed rule. Also, the phrase "developing policy or rules" -
while limiting the scope of the proposed rule - is ambiguous and needs
clarification. I am also concerned about how the proposed rule would
deal with legitimate privacy and confidentiality issues for research
subjects.
Unfortunately, I believe that it will be very difficult to craft
limitations that can overcome the underlying flaw of using FOIA
procedures to achieve broader access to federal funded data. No matter
how narrowly drawn, such a rule will likely harm the process of
research in all fields by creating a complex web of expensive and
bureaucratic requirements for individual grantees and their
institutions. It also runs counter to the efforts of NSF and other
science agencies to lessen paperwork burdens on our grantees through
longstanding initiatives such as the Federal Demonstration Partnership
(FDP) and the more recent implementation of NSF's FastLane system.
Using FOIA in this manner also undercuts the successful, balanced
and flexible approach to science and engineering data access adopted by
NSF and other science agencies. These policies were expressly endorsed
by the Senate Treasury Postal Appropriations Subcommittee as late as
last July. That is why I believe we should work towards enactment of
the bipartisan legislation, H.R. 88 sponsored by Representative George
Brown to repeal the FOIA provision of P.L. 105-277. This would allow
federal agencies to create more flexible and sound data access policies
that meet the information needs of the 21st century.
I look forward to working with you and with the Congress in the
upcoming months to help craft policies on access to federally-
supported data which are fair and open and do not hinder the normal
research process.
The National Science Board also released a one page statement saying
"The premature release of raw data research disrupts the process of
discovery," outlining six major problems. The full Board statement can
be found under Documents at http://www.nsf.gov/nsb
Richard M. Jones
Public Information Division
American Institute of Physics
fyi@aip.org
(301) 209-3095
