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