Letter from Congressman Holt to OMB
Mr. F. James Charney
Reference: 64 FR 43786 (August 11, 1999)
Dear Mr. Charney:
I am writing in response to the request for comments on proposed revisions of OMB Circular A-110 regarding public access to research data published in the Federal Register on August 11, 1999.
I commend OMB for its efforts in trying to make the best of a bad regulation. The provision of P.L. 105-277 making changes to OMB Circular A-110 is inherently ill-conceived legislation inserted into an omnibus bill in the dead of night without discussion from the parties it would effect [sic]. In general, I support the regulations proposed by OMB to implement this legislation as an attempt to limit the damage which could be brought on by this new provision. Weakening of these regulations would render them unworkable.
The provision added to P.L. 105-277 has four major problems. It can force researchers to breech the confidentiality of their subjects, especially in medical studies. It is an infringement of intellectual property, which could force release of data before the researchers gain the benefits of their work. It creates an opportunity for harassment of scientists and politicization of science. And it would impose a significant administrative burden on institutions.
I strongly endorse the need for the government to ensure that its regulations are based on scientifically sound research. However, I believe that the procedures established under the Freedom of Information Act (FOIA) are not the best means for achieving this goal. Instead, this procedure opens the possibility of harassment of scientists by groups with ulterior motives. The openness of scientific exchange, which is so vital to the maintenance of scientific progress, is not primarily a function of data access. It is dependent upon providing scientist with the opportunity to pursue all lines of inquiry and to freely and openly exchange their findings without fear of harassment or theft of their intellectual property by vested interests. I urge the Administration to push for a repeal of the provisions in P.L. 105-277 and encourage an open and democratic process considering the views of all interested parties in establishing a means of ensuring the soundness of research upon which regulations are based.
The definition of "data" in the OMB regulations is reasonable. I appreciate the effort to protect personal privacy, especially medical privacy. I also appreciate the efforts to restrict access to commercially-viable intellectual property. I remain concerned that in practice both personal privacy and commercial property will be difficult to protect. The vibrancy of our research enterprise will be dampened as the ambiguity in determining which data might be subject to disclosure will make industries reluctant to continue or enter partnerships with federally-funded researchers. I urge OMB to further restrict the disclosure of "information developed during or as a result of research using or concerning a product or process which was funded in part by a commercial entity."
I support the definition of "published" data as including only research findings published in a peer-reviewed scientific or technical journal.
I strongly endorse limiting the scope of research available to a FOIA request to that which is used "by the Federal Government in developing a regulation." I further request OMB to include the provision which would limit the scope to economically significant regulations at a threshold of at least $100 million economic impact.
I am deeply concerned about the financial impact these new regulations will have on individual researchers and on research institutions. Under the current draft of the regulations, there is no agreed upon method of reimbursement. There must be an established means for the institution to bill the government in advance for the cost of administering requests for data. If costs are to be born by the grant of the researcher, the burden could easily be great enough to stop the progress of ongoing research and will most certainly increase the cost to the researcher of administering the data and the grant. In addition, no mention is made of the new, fixed costs incurred by non-profit research organizations. The cost to a research institution are unknown but could be significant to establish and maintain an infrastructure to process requests for data.
Thank you for the opportunity to provide comments.