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Summary of Hearings on Federally Funded Data Available Under FOIA (7-28-99)



Senate Science and Technology Caucus
Roundtable Discussion on Public Access to Federal Data
July 27, 1999

The Senate response to the House Science Committee, known as the Senate Science and Technology Caucus, held a roundtable discussion on public access to federally funded research data.  While not exactly the same as a congressional legislative or oversight hearing, it still allowed an opportunity to get information on the issue and start building a public record on a law that has yet to have been subjected to the full legislative process.

Participants in the discussion included the host, Sen. Bill Frist (R-TN), along with Sen. Richard Shelby (R-AL), Sen. Jeff Bingaman (D-NM), and Rep. Rush Holt (D-NJ).  The panel for discussion featured the following participants:



Legislative Hearing on H.R. 88, Regarding Data Available Under the Freedom of Information Act
Committee on Government Reform
Subcommittee on Government Management, Information and Technology
U.S. House of Representatives
July 15, 1999

Summary

This lengthy hearing, with two full panels and 12 total witnesses, was an opportunity for members of the House to learn about some of the issues surrounding the Shelby "sunshine" amendment, which subjects federally funded research data to Freedom of Information Act (FOIA) requests.  A bill introduced by Rep. George Brown (D-CA), H.R. 88, if passed would repeal the Shelby amendment.  While all involved agree that scientific openess and access to research is a positive and neccessary thing, proponets of H.R.88 cite patient privacy and intellectual property issues along with the potential for harassement and increased administrative burdens as reasons against opening federal data to FOIA.  Opponents of H.R. 88 believe the tax payers have a right to data they funded and think FOIA adequately handles all privacy and propriety issues.  Questions from a number of the committee members illustrated that many of those not directly involved with H.R. 88 or the Shelby provision are getting their feet wet with this issue for the first time, demonstrating that while the issue has created a stir in the research community, it has yet to show up as more than a blip on the political radar screen.

Members Present
 
Subcommittee Chair Steven Horn (R-CA) Henry Waxman (D-CA)
Judy Biggert (R-IL) Jim Turner (D-TX)
Doug Ose (R-CA)
Paul Ryan (R-WI)

Complete testimony from some of the witnesses and the chairman's opening statement are available on the subcommittee's website at: http://www.house.gov/reform/gmit/hearings/testimony/990715.htm.

Introductory Remarks
Horn initially reviewed the purpose of H.R. 88, namely to repeal the Shelby Amendment which subjects federally funded research data to the Freedom of Information Act (FOIA).  He invoked James Madison with the quote, "You can't have popular government without popular information," but also acknowledged that one's right to data may infringe on another's
right to privacy.  His brief opening was rounded out by raising the privacy and propriety issues that have come up in light of the Shelby amendment.  In his introductory remarks, Horn seemed to genuinely not have his mind made up on this subject, often a rarity at congressional hearings which more often than not get used as a vehicle to expouse one's opinions instead of unearthing information relevant to any particular issue.

Waxman spoke out as a strong supporter of H.R. 88, and went on to list a number of his problems with the Shelby Amendment, starting with the nature of the amendment's enactment as a rider in the dead of night.  He pointed out that the amendment originated solely as a tool to be wielded in opposition to the EPA's proposed Tier 2 standards and was written in vague terms. In addition, Waxman found the law unfair in that it only applied to federally funded not-for-profit organizations, whereas private companies under contract were not subjected to FOIA.

Turner stated his support of insuring openness, accountability, and the sharing of scientific data, a support seemingly shared by everyone on both sides of the issue.  However, he continued by stating his belief that it is imperative that privacy and intellectual property rights are not compromised.  He also pointed out that the proposed Office of Management and the Budget (OMB) rules generated forty times the usual number of comments, and that there is a lack of legislative record on the law because of the means in which it was enacted.  Turner finished his statement off by attributing Rep. George Brown's (D-CA) absence to health issues.

Witnesses:
Panel 1:
Honorable Rush D. Holt (D-NJ), member of Congress
Honorable James C. Miller, III, Counsel, Citizens for a Sound Economy and former Director of OMB
Dr. Harold E. Varmus, Director, National Institutes of Health
Mr. James T. O'Reilly, Visiting Professor, College of Law, University of Cincinnati
Dr. Bruce Alberts, President, National Academy of Sciences
Dr. Robert W. Hahn, Director, Joint Center for Regulatory Studies, AEI-Brookings

The first panel was set up such that speakers would alternate, one in favor of passing H.R. 88 and opposed to the Shelby Amendment, the next with the opposite point of view.

Holt, representative of a strong research district and the former assistant director of the Princeton Plasma Physics Laboratory, was testifying as one of many co-sponsors of H.R. 88.  Holt listed his four main points of contention with the Shelby Amendment:

Holt, as many before and after him, supported the open exchange of ides, stating that in the absence of such openness you cannot make progress.  But his belief was that changing the law would not make the scientific process more open; it would only serve to close many of the current information pathways.  He stated that scientists have themselves established the means of sharing data, and that short-circuiting the journal peer-review process by forcing the release of data early will hinder investigations. He also believed that, under the new law, industry would be unwilling to participate in joint research for fear of losing intellectual property rights.  Holt also opposed the significant change in the law that the Shelby Amendment represents in the absence of any opportunity for the affected parties' participation.

Miller started with the simple belief that if the tax payers have paid for the data, they then therefore have a right to it.  He addressed one of the key reasons the law was enacted in the first place, namely that in order to have an open and accountable government, data used by federal agencies to justify regulations and policy decisions must be made available.  Miller looked at both the subject privacy and intellectual property issues that have been raised and stated that FOIA procedures specifically handle both.

The rest of the panel followed these leads, with Varmus and Alberts falling in line in support of H.R. 88, and O'Reilly and Hahn supporting the Shelby Amendment.  Varmus raised many of the same issues as Holt, focusing on privacy issues and giving his stance that FOIA is not designed to handle patient privacy.  He mentioned harassment and the potential decline of public/private patnerships under the new law as well.  O'Reilly was present as an expert on FOIA.  His belief was that FOIA is a viable infrastructure for data release and adequately deals with both privacy and propriety issues.  O'Reilly pointed out that Congress could enact any specific exemptions as required.  Alberts testimony stated just the opposite, namely that FOIA is not an appropriate mechanism and would be burdensome to researchers and institutions.  He pointed out that FOIA fails to require screening of the data request in order to first determine whether it is in the public good.  Hahn, while admitting that the Shelby amendment is ambiguous, stated his belief that scientists' concerns are overblown.  He came back to the peer review process mentioned by Holt, claiming that it is wonderful but inadequate when looking at data used for major policy decisions and regulations.  Hahn recommended that data access under Shelby should be limited to data used to support regulatory concerns and that an agency should be created to replicate findings of important, regulatory research.

A lengthy question and answer period followed, with some of the representatives getting their feet wet with this issue for the first time.  A lot of the debate revolved around the proposed OMB regulations designed to implement the Shelby Amendment.  Many of the concerns of Shelby opponents are addressed in the OMB rule making, particularly in that the rules specify that only published data is subject to FOIA requests.  However, many questions were raised by both panelists and members as to whether these rules would stand given that the word of the law states "all data" and makes no distinction about publication.  No concrete answers were found, although O'Reilly seemed to think that OMB regulations would stand in court.  Others believed that the courts have historically come down on the side of releasing data and would rule in favor of the actual law and not the drafted regulations.  A lengthy discussion of the peer review process occurred, leading Varmus to exclaim, "Peer review is not the issue, access to data is."  Holt brought up the point that FOIA was originally intended to ensure political openess and that different procedures would be needed for scientific openess.

Panel 2:
Mr. William L. Kovacs, Vice President, Environment and Regulatory Affairs, U.S. Chamber of Commerce
Dr. Robert Shelton, Vice Provost for Research, University of California and Association of American Universities, National Association of State Universities and Land Grant Colleges
Mr. Anthony Obadal, Washington Counsel, Association of Equipment Distributors
Dr. George D. Thurston, Associate Professor, Environmental Medicine, New York University
Mr. Michael Gough, Adjunct Scholar, The CATO Institute
Dr. Gary D. Bass, Executive Director, OMB Watch

Again the panel was set up such that each speaker was followed by a foil, this time with proponents of Shelby/opponents of H.R. 88 speaking first.  Many of the same issues were raised as in the first panel, with an environment of he-said/she-said developing around the many statements of "privacy/propriety will be violated" pitted against "privacy/propriety are handled just fine by FOIA."  Bass, from OMB Watch, was the first voice of the day to question the very necessity of the Shelby Amendment, stating "It is unclear what the Shelby amendment is attempting to fix."  He cited the history of the legislation developing as a result of EPA proposals and continued, "It is very dangerous to formulate far-reaching legislation based on one anecdotal problem."



Sources:  Hearing Testimony

Please send any comments or requests for information to the AGI Government Affairs Program.

Contributed by AGI/AIPG Geoscience Policy Intern Scott Broadwell

Last updated July 28, 1999


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