April 1999 Bulletin

Scientists warn research in jeopardy

Researchers support public access to data, but find new law too broad, ambiquous, costly

Allowing public access to federally funded research information seems like a reasonable idea. Scientists agree with the concept, but they are appalled by the new law that would require federal awarding agencies to ensure all data produced under the award is available to the public through the Freedom of Information Act (FOIA).

In many cases with troublesome legislation, the "devil is in the details;" in this case, the lack of details is bedeviling the scientists.

The law in the 1999 Omnibus Spending Bill doesn't spell out the scope of the data, when it must be made available and many other critical factors.

The law is "too broad, too ambiguous, unrealistic, costly and presents more dangers than it is helpful," says Gary E. Friedlaender, MD, chairman of the Academy's research committee.

"There is potential value to making the data available to the public," says Dr. Friedlaender, but he, like many other scientists, is concerned about the unintended consequences of the law, as it is written.

Scientists have until April 5 to file public comments with the Office of Management and Budget, which is charged with implementing the legislation. The American Association for the Advancement of Science is urging members to write to OMB.

Bruce Alberts, president of the National Academy of Science, said in a letter to OMB, that while the National Research Council supports the concept of data sharing, "the public disclosure of grantee research data under FOIA called for by the new legislation is not a carefully designed way of achieving data sharing in the public interest, but rather a very bureaucratic, legalistic and expensive mechanism for disclosing research data to the public."

So far, the protests have prompted Rep. George Brown (D-Calif.) to introduce HR 88 to repeal the requirement.

Before the law was passed, only material contained in federal agency files was covered by the FOIA; the new law includes "all data."

Dr. Friedlaender points out that the law doesn't clearly define the scope of the data that must be revealed. Scientists worry it could include journals, notebooks, computer programs, drafts of research papers, copyrightable works and procedural manuals.

The law isn't specific about when it should be shared-after the data is gathered or only after publication in a peer reviewed journal.

Alberts said, "one of the most troublesome aspects of the application of FOIA to federal grantee research data is the possibility that FOIA may not allow a federal research grantee to publish the results of his or her research in scientific journals before the underlying research data must be made available to the public under FOIA.

"Publication of research results in peer-reviewed scientific journals is one of the most critical elements of the research process. It is the means by which new discoveries are communicated to others in the scientific community and to the public at large."

The new law would short-circuit the scientific research process, he said.

The law could impose a major, costly burden on institutions and federal agencies such as the National Institutes of Health to make all the data available. Alberts said "there are tens of thousands of federally funded research grantees engaged in tens of thousands of research projects. One cannot overemphasize the staggering volume, complexity and variety of federal grantee research data being generated."

Dr. Friedlaender also is concerned about the protection of privacy of human subjects involved in the research. "There's also a question of the proprietary rights of the investigators; not just in the economic value, but in intellectual ownership," he said.

The legislation applies to data regardless of the level of funding by the federal government. In cases where research has been supported by some federal funding, plus private funds or funds from other countries, scientists say the release of all the data would put a chill on collaborative research.

The origin of the law is a request by Sen. Richard Shelby (R-Ala.) who was unable to gain access to research data developed by Harvard School of Public Health involving a connection between air pollution and health. Sen. Shelby asked the EPA to release the data so that other scientists could analyze the data. The EPA said it belonged to Harvard. The university initially balked, then gave the data to an independent institute.

Sen. Shelby is supported by many business groups and some scientists who want more public disclosure of federally funded research.

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