II.9.4 Definition of "Data"

Criticism: Scientists may have to turn over lab notebooks, emails, field notes, and other working papers, and as well as plant specimens, tissue samples, cell cultures, and similar materials under the new rule. Even phone logs and financial records of individual researchers could be sought.

Response: Financial records and other personal data of individual researchers should be excluded from the definition of data in the revised Circular.

With respect to the specific types of materials referenced in the criticism, each agency will be responsible for developing conforming regulations to implement the broad provisions of the A-110. Those regulations will address in detail the kinds of materials applicable to that agency's research and likely to be implicated by the new data access provisions. As a practical matter, as with FOIA, policies on whether certain materials meet the criteria for public disclosure will develop over time, and some classes of material will require decisions on a case by case basis. Like agencies' FOIA determinations, these agency decisions may be subject to judicial review.

In addition, it is likely that some of the examples above would not meet the requirement that the data be published and used in a federal policy or rule, and it would therefore not fall within the scope of disclosure requirements.

Criticism: Raw data do not always come in discrete packages or in such a manner that it is easy to determine their origin. How will it be possible to distinguish data that must be disclosed from data that fall within one or more exemptions?

Response: Under the approach CRE proposes, all data -- regardless of origin -- that relate to a study funded in whole or in part with federal dollars would be susceptible of public disclosure in the first instance. Where private parties choose to share their data with other researchers undertaking a federal study, the private party should be put on notice that the shared data may be subject to federal disclosure laws. Agreements between public and private researchers respecting confidential commercial data should be respected, but the private entity should bear the burden of determining that any shared data can be reasonably segregated.