Hearing Summary: Government Reform and Oversight Subcommittee on Government Management, Information and Technology Hearing on Use of FOIA to Access Scientific Data
July 15, 1999
This hearing focused on the pros and cons of a provision that required OMB to promulgate regulations applying principles of the Freedom of Information Act (FOIA) to data generated under federal grants. This provision - commonly known as the Shelby provision - was inserted in last year's Omnibus Appropriations Act. The hearing came on the heels of the defeat of an amendment sponsored by Reps. James Walsh (R-NY) and David Price (D-NC) to the FY 2000 Treasury Postal appropriations bill, that would have delayed enforcement of the Shelby provision pending further study.
The hearing featured ten witnesses - equally divided between supporters of the Shelby provision and supporters of a bill - HR 88, sponsored by Rep. George Brown (D-CA) - to repeal the Shelby provision. Witnesses from the science community - including Rep. Rush Holt (D-NJ) a physicist, NAS President Bruce Alberts, and representatives of AAU and NASALGUC - all strongly opposed the Shelby provision and backed the HR 88 repeal. Proponents of the Shelby provision included the Chamber of Commerce and other industry associations and other conservative think-tanks such as AEI, the CATO Institute and Citizens for a Sound Economy.
Witnesses in favor of the Shelby FOIA provision all maintained that applying FOIA to raw scientific data was consistent with fundamental principles of open government and good science. Former Reagan OMB Director James Miller of Citizens for a Sound Economy claimed that the Shelby provision actually "enhanced the scientific method" because it would encourage more data sharing. All witnesses in favor of the Shelby provision noted that federal regulatory agencies like the EPA had promulgated regulations based on scientific data that was not publicly available for scrutiny at the time those regulations were drafted.
Opponents of the Shelby provision leveled several criticisms including a wide array of unforseen consequences resulting from an oversimplistic and vaguely drafted approach to federal data policy. Critics' concerns included - serious privacy concerns for human subject data in clinical trials or social science surveys; use of FOIA to harass of researchers who are studying controversial phenomenon, especially in the environmental fields; disclosure through FOIA of private sector intellectual property and the resulting stifling of research partnerships between industry and universities; and increased administrative burdens and costs of research both to universities and the federal governments.
Most subcommittee members were sensitive to the charge that using FOIA could result in the disclosure of confidential, private information of human subjects involved in federal research. In response to questions from Rep. Judy Biggert (R-IL), James O'Reilly, Visiting Professor, College of Law, University of Cincinnati, asserted that existing privacy exemptions in FOIA would protect the confidential information of human subjects and researchers. Shelby opponents however, noted that the original Shelby provision was vaguely drafted and could be construed broadly and lead to unintended release of confidential data. Of concern to many science witnesses was the instance where researchers studied a very small pool of individuals. In such a case - mentioned by Congressman Holt - if such small data sets were released even in the aggregate, someone could very easily determine the identity of the subjects using a kind of "reverse engineering".
Many of the proponents of the Shelby language acknowledged that it was poorly drafted and that it felt it could be refined by OMB during the drafting of regulations to OMB Circular A-110 which was on-going. Most Shelby proponents seemed satisfied with OMB's attempts to refine and narrow the scope of the original Shelby language, or at least they were holding their criticisms until the regulations became final. Professor O'Reilley - speaking in favor of the Shelby provision - asserted that specific exemptions to FOIA could be written to exempt disclosure of data from private/public R&D projects. Mr. Miller noted that he would support such an exemption.
Most Republican members including freshman Reps. Paul Ryan (R-WI) and Doug Ose (R-CA), dismissed vagueness concerns of Shelby opponents, maintaining that OMB had the authority to limit the use of FOIA to certain circumstances such as after the data were published in peer-reviewed journals. However, Rep. Ryan noted that federal agencies, such as the National Cancer Institute, had abused their authority by delaying the publication of certain controversial studies on radiation risks to humans. Ryan stated that because of this abuse, even waiting until publication before invoking FOIA may not be good enough to achieve greater openness.
One witness, Gary Bass - Executive Director, OMB Watch, correctly summed up the situation by noting that he could not figure out what the problem was that the Shelby language was trying to fix. Bass noted that there were already mechanisms for agencies to obtain underlying data and information from grantees under OMB Circular A-110. In the vast majority of cases, Bass maintained, these existing mechanisms work.
In summation, most members did not come out for repeal of the Shelby language. Most felt, like Ranking Democratic Member James Turner (D-TX), that release of scientific data through FOIA should only occur after publication in a peer-reviewed journal. However, as many Shelby critics such as Dr. George Thurston - Associate Professor, Environmental Medicine, New York University pointed out, even this approach is fraught with potential problems that could harm research. For example, many researchers may delay publication for fear that other researchers may steal their raw data.