US fury over data access legislation

June 4, 1999

American scientists are opposing a law that forces openness in federally funded research. Ayala Ochert reports

Scientists in the United States are up in arms over an obscure piece of legislation passed last year that they say could drastically alter the way research is done. According to the new law, all data from federally funded research must be made available to the public under the Freedom of Information Act - a step too far, according to many scientists.

Although this legislation was first suggested by Senator Richard Shelby of Alabama (pictured) as early as July of last year, the scientific community was caught napping and only realised what was happening in December - two months after the law had already been passed as an amendment to the Fiscal Year 1999 Omnibus Appropriations Act, a less-than-gripping 4,000-page document that few had bothered to read.

Now scientists are trying to have the law repealed and are asking for "time-out" to look into alternative ways to meet the same objectives.

Back in 1997, Shelby was quizzing the Environmental Protection Agency on the scientific basis of its new air pollution standards. But when he asked to see data from the scientific studies used to justify the new rules, the EPA said that the data belonged to the Harvard researchers who had done the work.

Shelby was appalled that the public did not have a right of access to the data, which was being used in ways that significantly affected the lives of individuals. That motivated him to put forward the controversial new legislation.

"While (the legislation) included public access to data underlying a federal rule, it clearly went beyond that. It is a matter of the public's right to know," says Shelby's legislative director, Kathy Casey, making clear that the law refers to all federally funded research.

Openness is traditionally a central part of the scientific process. Many fields of science routinely share data, and increasingly journals demand open access to data as a precondition for publication.

But many in the scientific community - while they say they support Shelby's objectives - fear that the "one-size-fits-all" approach of using the FOIA could seriously disrupt the normal practice of research.

"So many terms are so vague, and so many questions unanswered," claims Mark Frankel, head of the science and public policy programme of the American Association for the Advancement of Science.

The AAAS has voiced its concerns to the Office of Management and Budget, the administrative body responsible for implementing the law. It says partnerships between academic scientists and industry or with foreign scientists could be jeopardised by the new requirement. And it seems particularly concerned that people might be less likely to volunteer as research subjects if they thought the federal government had access to their files.

There are also fears that intellectual property rights could be compromised. But Casey says that FOIA is designed to handle all these exceptions.

"We chose FOIA because it is a logical tool. It is well known and has been around for more than 20 years. The exceptions are so broad and there is so much discretion," she says.

While in principle the public has access to federal documents, there are provisions to protect personal privacy, national security and trade secrets, among others.

"So how is research data different from any other kind?" asks Casey.

The AAAS is still hoping to conduct a study to see whether the scientific community can address these issues internally. But Casey believes it has finally run out of time.

"The issue of access to data is not a new issue, so no one should be surprised by this," she says. The OMB expects to publish a "final rule" by September 30.

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