APS Resolution Urges Amending Data Access Law

Last fall, as Congress put the finishing touches on 4,000 pages of omnibus appropriations, Sen. Richard Shelby (R-AL) inserted a rider that requires Federal agencies to ensure that all data obtained under a federal grant be made available to the public under the Freedom of Information Act (FOIA). Shelby's action stemmed from a refusal by the Harvard School of Public Health to release data that the Environmental Protection Agency had used in proposing stricter air-quality standards two years ago. The new law, spelled out in OMB Circular A-110, has prompted many scientists to react with alarm,. They view it as a threat to academic freedom, although Congress insists the intent is to keep federal agencies from rulemaking based on unpublished junk science. Ironically, more than a decade ago, the burning issue was just the opposite-government restriction on data dissemination. That threat prompted the APS Council in 1983 and again in 1988 to issue strong statements opposing constraints on communication "by exemptions to FOIA or any other means," except when national security was concerned. Taking cognizance of those statements, but responding to the potential dangers created by the breadth of the Shelby language, the APS Executive Board adopted a measured resolution at its February meeting. The Board affirmed that government agencies should rely only on scientific results that have been peer reviewed and subjected to fair and open appraisal when establishing federal regulations and policies. The Board also called for amending the Shelby language to define its scope more narrowly. The full text of the APS resolution follows.

APS Resolution

The Executive Board of the American Physical Society affirms that government agencies in establishing federal regulations and policies should rely only on scientific results that have been peer reviewed and subjected to fair and open appraisal. To the extent that Section 101(h) of Division A of Public Law 105-277 (Title III of H.R. 105-4104, the Treasury and General Government Appropriations Act of 1999) addresses that issue, the APS Executive Board endorses its intent.

However, the APS Executive Board believes that the language contained in the Public Law is too broad and will lead to a number of unintended consequences that are extremely harmful to American interests. Specifically, by directing the Office of Management and Budget to amend Circular A-110 "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," the Law

Creates the potential for releasing into the public domain flawed data that have not been subjected to adequate peer review;
Compromises the privacy of individuals who participate in clinical research tests.
Undermines the viability of university-industry partnerships and inhibits entrepreneurship by restricting intellectual property rights;
Places an extraordinary burden on researchers to maintain their records for perpetuity through an absence of a statute of limitations; and
Exposes researchers and their employers to potentially expensive excessive litigation, thereby raising the cost of research.

The APS Executive Board believes Congress should work with the Office of Science and Technology Policy and the Office of Management and Budget to develop perfecting language, which remedies these deficiencies.

The Board believes that the proposed revision published by OMB in the Federal Register (Volume 64, Number 23) provides a reasonable starting point. Final language, however should define the word "publication," establish a statute of limitations for maintaining records, provide a grace period to enable researchers and their institutions to file patent applications, safeguard the privacy of human subjects, and provide an explicit recognition that the normal costs associated with compliance will qualify for inclusion in indirect-cost allowances.

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