Origins of Congressional Action Regarding Public Access to Data
Office of Senator Richard Shelby
Thank you very much. I want to thank Dr. Frankel and Mr. Tozzi
for allowing us on behalf of Senator Shelby to join you today, and to hopefully
give you some insight as to why the Senator and other Members who join him
in supporting this particular provision in the Treasury and General Government
Appropriations Bill thought it was a good provision and why they think it
is good public policy and good for science.
I would like to talk about two main thrusts: one is process,
and one is substance. I do not think we ever anticipated - not to say that
I think we were na´ve about what we were doing - the kind of reaction that
we had. Certainly it was somewhat delayed. There has been varied commentary
on how this provision came into being. I would like to clarify that for everyone
who has a question about it. There has been a lot of characterization of the
fact that this provision was somehow slipped into a 4,000-page omnibus bill
in the middle of the night. While that does sound very melodramatic, interesting
and mysterious, it could not be farther from the truth.
This provision - indeed this issue - is not a new one. In fact,
its grounding preceded our efforts in 1998 by at least a year. In 1997, a
similar effort was made on the House side, in full committee. While it did
not succeed, it was something that we were aware of and certainly supported.
In early 1998, the Senator [Shelby], joined by other Members, Senators Lott,
Campbell and Faircloth, was interested in seeing some sort of effort by OMB
to review the current policies for making federally funded research subject
to public disclosure, and sought to include language in the Treasury and General
Government Appropriations Bill. That is one of thirteen separate spending
bills that are considered by the Congress in both the House and Senate every
year. They sought to have some language included within the OMB section of
the Treasury and General Government Appropriations Bill, and we did. We were
successful in getting some language included which would have required OMB
to review Circular A-110, and make a determination of whether it was sufficiently
making federally funded research subject to public disclosure or making data
accessible to the public. That was July of 1998. That language was included
in the underlying Treasury bill when it was reported out of committee. At
that time, this language was publicly in a bill, and there was an attempt
to bring that bill to the floor at the end of July. For a variety of reasons,
it was pulled from the floor because they could not pass it in a timely manner.
Congress then went into an August recess for approximately a month. In early
September, the Senate passed the Treasury and General Government Appropriations
Bill that included that underlying language. At that time, several colloquies
between Senators - Senators Lott, Campbell, Faircloth and Shelby - accompanied
the bill as it passed the Senate and was published in the Congressional Record.
Just as if one were looking in the Federal Register or anywhere else for something
public, this bill was accessible if one wanted to see it. The bill disclosed
and described exactly what the members' intent was in having this language
included in the Treasury and General Government Appropriations Bill. The colloquies
also made clear that while they were pleased with the language that was included,
they would also make an effort to improve the language in conference. The
Senate passed that bill in early September. Then the House and Senate, between
September and October, engaged in a conference on the differences between
the two bills. This language was not included in the House bill, so this was
an issue that had to be addressed in conference.
We worked with the House appropriators, and ultimately OMB,
in crafting the language that was ultimately included in the Omnibus bill.
It had to be cleared by both the House and Senate appropriators, and in working
with OMB to see that it was something they could sign off on, which they did.
In fact, they were very helpful in providing us the cost provision. So, at
that point, the conferees agreed to a report that included this language that
you now see. That conference report was reported to the Senate after it passed
the House on October 7 or 8. They attempted to bring that separate bill to
the floor at that time. Again, we were getting close to the end of the Congress,
and I think there was an effort to read the Treasury and General Government
Appropriations Bill on the floor, which would take several days. So the leader
decided to pull the bill. My whole point here is that this was on October
7, and colloquies accompanied again the bill at that time, describing the
language that was included in the separate Treasury and General Government
Appropriations Bill. Ten days later the Treasury and General Government Appropriations
Bill was wrapped up with seven other appropriations bills.
My point in going through this is that I think it is important
to characterize how this provision was incorporated ultimately in the Omnibus
bill because some have found a sort of irony in the fact that we have what
we would characterize as a sunshine provision, and yet that was somehow stealthily
included. I think that, if anything, this provision was well-debated by the
Members who had an interest in it and included it in the bill. Then we worked
with OMB to include the final language. This was hardly a sneaky provision.
I wanted to start on that note so that everyone can be very
clear about how this provision came to be because the Senator thinks it is
a very good provision. He is joined by many of his colleagues in this. Starting
from that premise, I would like to give you some insight into his background
on this. It was not an issue of new impression for him in 1998. The Senator
has a long history of being involved in issues of what he would characterize
as "sound science." The other is sort of a public's "right-to-know" perspective.
He had been engaged a year earlier, in 1997, in some regulations and rules
coming from EPA. These dealt with the ozone and particulate matter standards.
Certainly we heard from a lot of interests in our state, to which he is very
responsive. This was a very hot political issue at the time. In April of 1997,
he was engaged in a question-and-answer dialogue with EPA Administrator, Carol
Browner, that had to do with the underlying data supporting the rule. He asked
her if EPA would make the data underlying that rule available to the Congress
for their review. She said she could not. He asked why. She said that he could
ask Harvard or the author of the other study - I believe the American Cancer
Society - that also underlay the rule, and that perhaps they would make the
data available. They had a protocol for accessing the data. He was very disturbed
by this. This is a narrower focus of what we ultimately believe the change
in the law provides for. But he was disturbed by the fact that an agency had
proposed a rule that would affect millions and millions of people, and that
the Congress could not have access to the underlying data, but would have
to go to a private entity to seek that information. I think he thought that
was a very bad thing, at least from a public-policy perspective, and certainly
from a trust-in-government perspective.
This struck a cord with him because he had also been involved
in the past with an issue particular to the State that dealt with the listing
of the Alabama sturgeon. That was a big battle over whether science were being
used to justify a listing. There was a great deal of debate over obtaining
access to that data so that one could replicate, understand, and determine
whether or not they were valid.
So Senator Shelby has a very strong interest in these issues,
and so again after the efforts in 1997, when he had an opportunity this year
again to address it, he thought it was a good opportunity to do so. To be
honest with you, I think he saw it as just a small step beyond current law.
His and our understanding of current law is that the federal agencies already
have the ability under Circular A-110 to obtain access to underlying data
that are federally funded. I think part of the question and the issues that
had arisen subsequent to the 1997 experience that he had, is that while the
agencies had that ability to do so, that maybe they had not used it as frequently
as he and other Members believed they should for the benefit of the public.
So, in adding this provision to the Treasury and General Government Appropriations
Bill, the Senator and his colleagues believed that they were encouraging OMB
to revise the Circular to ensure that an additional mechanism could be used
so that the public could seek access to federally funded research data without
it being solely the decision of the federal agency. That is what they believed
they did by inserting this additional provision that they asked OMB to include
Again, I want to be clear about what they believed the intent
was. We are very pleased with the fact that OMB has come out so early in putting
this revision out. The Senator and other Members intend to work with OMB.
We have not had an opportunity to sit down and talk with them, but we will.
We also intend to file formal comments, just like everyone else. I would like
to say clearly what I know the Senator's intent to be; this is borne out by
the colloquies and also the language that you will find in both the underlying
Senate version of the Treasury bill and ultimately in the conference report,
which is twofold: First, one has a general right to know on the public's part;
the taxpayer has a right or a reasonable expectation to be able to access
data. So all federally funded research data should somehow, through a certain
filter, be accessible via FOIA. Second, regardless of whether it is federally
funded or not, if data are good enough to underlie a federal rule, policy,
study, action, etc., then they are also good enough for the public's consumption.
That is the twofold perspective that the Senator's practical experience is
based on. If one reads the language itself and the thrust behind it, one sees
that it is aimed at making sure that federally funded research data would
also be subject to FOIA, beyond the current law that allows the federal agencies
to gain access.
I know there are some other substantive issues being raised,
and I think they are very legitimate. I think the Senator, in working this
language out with OMB, originally thought FOIA was hardly a draconian trigger
in gaining access to data. FOIA, as he understands and we understand the law
to be, contains several exceptions that address some of the concerns that
have been raised. I do not know if they are absolutely perfect in addressing
them, but it is a fairly flexible law. And I think it was intended to be a
flexible law to address the kind of concerns that are now being raised about
intellectual property, privacy, confidentiality, those kinds of issues. And
FOIA is used every day to address those issues on a case-by-case basis. So
I think the Senator saw FOIA as a safeguard against the concerns being raised
about gaining access to federally funded research data. I know there have
been issues about holding periods for data. I think the OMB process facilitates
the kind of discussion and consideration of the concerns now being raised,
and we intend to participate in that process.
I think earlier Mr. Goldberg had mentioned that simple solutions
are not always good solutions to complex problems. I do not think the Senator
thought that. We could have changed the law directly, but I do not think that
was the intent behind this. I think the idea was to allow OMB, through its
process of revision of A-110, to consider all the concerns now being raised.
The Senator's intent is to participate in that process.
I think we all agree on the policy behind the provision, that
it is good to have transparency in government, that it is good to promote
greater public trust in government. The Senator believes that in order to
achieve those goals, one should be able to have reasonable access to federally
funded research data that would allow people to duplicate and validate the
data. The Senator believes that is the sound method of the scientific process.
More importantly, when you have federal rules, policies, and studies that
are used to apply to almost every single American in some circumstances, the
data that are used to justify that rule or policy, study or action, should
be made available. That is a good thing.
I would simply say that these are not new issues, and that access
to data is not necessarily a new issue. I guess we are at a different stage
now. I think this process will be very healthy for everyone in addressing
these similar interests, not competing interests. I would simply say that
we are going to participate, listen, and hopefully we will be able to work
toward ultimately achieving public good through facilitating sound and better
science and greater access by the public. Thank you.
Q: [Miron Straf, National Research Council of the National
Academy of Sciences]: Could you elaborate on what you think the Senator's
formal remarks on A-110 will be? In particular, what is his reaction to the
provisions that it apply only to data that will be used for federal rules
or policy regulations, and only after publication of the results?
A [Kathy Casey]: I guess I was not clear in my comments.
I do want to say, sort of as a proviso, that we do intend to comment formally,
but we have not fully discussed with the Senator exactly what the nature of
those comments will be. So, I do not want to mislead anyone in what those
formal comments might look like. But I can, as an initial matter, tell you
that I think that - and again we have not had an opportunity to talk with
OMB, either, so perhaps in talking with them it will clarify some of our perceptions
- our expectation was that the rule would not simply apply to data that is
used to underlie a federal rule/regulation/policy/action/study, that it is
broader. In fact, that is what was intended. If you look at the colloquies
or at the language itself - to make any federally funded research data that
is funded under an award subject to FOIA, I think that is our expectation.
I think if you look at the colloquies, it also includes data that would be
used to underlie a federal rule/regulation/policy/action/study. It is actually
two-fold, if you think about it, because I do not know what the definition
of "data" will be - this is something that OMB and everyone who will be commenting
will be talking about because I think legitimate issues have been raised about
what constitutes data, whether it need be published, etc. When you are looking
at the broader issue of ALL federally funded research under an award being
subject to FOIA, there may be a different standard in terms of the "publication"
issue you raised. Our perspective would be that if data, not published, were
used to underlie a federal rule/regulation/policy/action/study, that data
should be subject to FOIA and public release. If the data are sufficient to
underlie a federal rule or policy, then they are in good enough shape to be
subject to public scrutiny. I am simply suggesting there may be a difference
there. But again, I do not know. I think in discussions with OMB and ultimately
in light of issues various commenters may make, that is something that has
to be flushed out. I do not think that issue of data is a new one. I think
it is simply one that had not ripened under existing law because even under
federal agencies' abilities now, under A-110, my understanding is that they
have the ability to gain access to data, and there is no definition, and there
are no exceptions like under FOIA. So maybe these are not new issues; they
are just now being raised because of our action.
Q: [Brian Hyps, American Society of Plant Physiologists]:
I appreciate the excellent summary. We polled some of our members, and one
of the things that came back to us is that they think industry will be less
likely to collaborate with university scientists if they have to give this
information to the public. Was there any consideration of that?
A [Kathy Casey]: Again, I would simply go back to the
fact that my understanding is that if you are going from the premise of expectations
of what the law is, the law currently allows federal agencies to gain access
to that information and to disseminate and publish it if they wish. I think
it is simply a question that what we have done has created an additional trigger
or mechanism that allows the public to gain access to it.
Q [Brian Hyps]: The question goes to this: Could a foreign
competitor or a domestic competitor obtain more information than the agency
would not have otherwise obtained itself?
A [Kathy Casey]: I would again say that a lot of these
issues would be addressed in the context of OMB, but I would say that actually
FOIA is more restrictive than what the current law provides that the federal
agencies have access to. There are exceptions in FOIA that address many of
the concerns, I believe, that are being raised - national security concerns,
trademark concerns, patent concerns, trade secret concerns, privacy concerns.
Again, the expectation would be that the federal agencies would be engaged
in a determination, looking at the FOIA requirements, of how much data should
be shared based on those kinds of concerns. I think we believe that FOIA is
a good tool that allows them to address many of the concerns that currently
FOIA does not apply to federal agencies. Federal agencies are not restricted
by FOIA in gaining access to data that is currently federally funded and also
making it available.