II.9.7 Relationships with Private Funding Sources

Criticism: Private companies may be unwilling to continue joint research with federally funded institutions because of uncertainties over what data are protected under FOIA.

Response: The proposed revisions to Circ. A-110 normally defer release of data until after publication of research results, and thus should alleviate many private companies' concerns about premature disclosure of data.

Private industry also should be responsible for knowing the regulatory environment within which it operates. Like the vigilance a company exercises in protecting its patent rights and other intellectual property, a private company should be responsible for maintaining the security of its own research data and for knowing how the law will apply to that data.

The Technology Transfer Act, for example, protects companies engaged in Cooperative Research and Development Agreements ("CRADAs") with federal agencies. See Section II.2.2.b, supra.

As part of the award process, federal awardees should be required to provide notice to private research partners that sharing data with federally funded researchers may subject that data to possible public disclosure. Professional, scientific, and academic organizations should be encouraged to publicize this aspect of federal data sharing policy. A statement regarding the federal policy on disclosure of commingled data should be included in the notice that is issued to award recipients. See Section II.5, supra.

In addition, the government has retained all if its preexisting rights to obtain research data. The revisions to Circular A-110 merely require the government to go out and obtain the data to which it was always entitled. To the extent that private and federally funded data were commingled prior to the Circular's revision, the new policy on data access does not change the government's right to collect and retain private party data.

Criticism: It seems unfair to bring all of an organization's research under the federal data access rules merely because the entity receives one dollar of federal money. If an entity receives a block amount of federal funding, and the entity conducts any number of studies, including some with support from private money, will all of the entity's research fall under the disclosure provision?

Response: Generally yes, assuming the research results in published findings that are used by the federal government in development of policy or rules, and subject to the provisions for protection of privacy rights, confidential commercial information, and other relevant exemptions. As discussed above, competing interests are at issue here. Strong public policy arguments also favor access to federally sponsored research data. One could make the counter-argument to this criticism that it would be "unfair" to researchers who forego all federal funding (in order to maintain complete secrecy over their data) to allow other researchers to obtain partial funding for the same secret research.

CRE, however, does not take a firm position on this issue and would consider possible accounting solutions which, if proven to be viable, could distinguish among different research projects undertaken at institutions receiving block funding. The important point is that the criticism does not present an insurmountable obstacle to data access.

Criticism: The proposed revisions would put scientists/researchers who receive U.S. federal funding at a disadvantage vis-a-vis competitors who do not, both domestically and internationally.

Response: The extent to which this is a real-world problem remains to be seen. However, researchers accepting U.S. funding may need to take this into consideration in evaluating the importance of government financial assistance they are receiving.