[Congressional Record Volume 145, Number 2 (Thursday, January 7, 1999)]
[Extensions of Remarks]
[Pages E32-E33]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      INTRODUCTION OF LEGISLATION

                                 ______
                                 

                       HON. GEORGE E. BROWN, JR.

                             of california

                    in the house of representatives

                       Wednesday, January 6, 1999

  Mr. BROWN of California. Mr. Speaker, I am introducing a bill to 
repeal a legislative provision included in P.L. 105-277, the omnibus 
bill making appropriations for Fiscal Year 1999. This provision directs 
the Office of Management and Budget to amend Section--.36 of Circular 
A110 to require Federal agencies to ensure that all data produced under 
grants made to institutions of higher education, hospitals, and non-
profit organizations will be made available to the public through 
procedures established under the Freedom of Information Act (FOIA).
  This provision should be repealed on the basis of both the flawed 
process through which it was adopted and because of the damage it is 
likely to do to the publicly funded research structure which we have 
developed over the past fifty years. This scope of this provision has 
never been examined in public and has never been the subject of a 
hearing. And, if protests from the research community are correct, this 
provision poses a major threat to academic freedom in the United 
States.
  On the process issue, it is ironic, that a provision which some have 
described as a sunshine provision was tucked into a 4,000-page bill in 
the dead of night. There were no bills introduced in the 106th Congress 
containing this provision. There were no hearings held to determine 
whether there was a problem with the current situation with regard to 
data availability in the scientific community. We do not know what the 
scope of any existing problem is, or whether using the Freedom of 
Information Act is the best way to address this alleged problem. No one 
in the university, hospital, or non-profit community was provided an 
opportunity to comment on this legislative provision or the need for 
it. To alter the rules that the scientific community has operated under 
for decades without providing them an opportunity to speak to the need 
for this change or to participate in developing it, is not only unwise, 
it is unfair.
  I fully support the free and open exchange of information, as I 
believe all Members do. I doubt we could have made the progress we have 
in science without sharing of new knowledge. Scientists, both publicly 
and privately funded, routinely use a variety of mechanisms to share 
data and information with one another and with the public. The 
proliferation of scientific journals, increased scientific programming 
on television and radio, and routine science coverage by daily news 
journals are all evidence of this. However, I believe there are 
numerous reasons to question the wisdom of mandating the application of 
the Freedom of Information Act to data generated under this category of 
federal research funding as a mechanism for achieving the laudable goal 
of facilitating the dissemination of scientific information.
  A number of my colleagues joined me in sending a letter to the 
Administration to express some specific concerns regarding the 
implementation of this policy change, and I am appending this letter at 
the end of these remarks. One area of concern pertains to research 
involving human subjects. Public health and bio-medical research 
requires the voluntary participation of human subjects. Volunteers 
currently make agreements with researchers and their institutions to 
divulge personal medical information on the condition that their 
information will remain strictly confidential. They do this with the 
understanding that they are making this agreement with the research 
institution and not with the federal government. Although FOIA provides 
protections for some types of information, the provisions may not be 
adequate to ensure confidentiality. Even if they were, I believe 
individuals will be reluctant to divulge sensitive personal information 
knowing that this information effectively becomes the property of the 
U.S. government as an official government record. Significant loss of 
voluntary participation in public health and bio-medical research would 
be devastating.
  I am also concerned that this provision could facilitate the theft of 
intellectual property. We have numerous statutes, such as the Bayh-Dole 
Act, which provide protections for the intellectual property of 
researchers receiving federal awards. Mandating the accessibility of 
all data produced under a federal award would undermine the protections 
for researchers' intellectual property rights guaranteed under 
copyright and other technology transfer laws. Although Circular A110 
does not cover federal awards to businesses and contractors, there are 
numerous instances of university-private sector partnerships in which 
private and federal dollars are intermingled within research projects. 
While privately-funded research will not be subject to FOIA, companies 
may be reluctant to continue some areas of joint research with 
federally-funded institutions who must comply with this mandate because 
of ambiguities created in the determination of which data would or 
would not be subject to FOIA.
  I am also concerned about the potential for increases in 
administrative burdens and costs for granting agencies and for award 
recipients. Universities and other grant receiving institutions are 
likely to feel compelled to create formal, centralized procedures for 
responding to requests for data and for implementing the requirements 
of FOIA. While the language of the

[[Page E33]]

Omnibus Bill indicates that agencies could charge a user fee for 
obtaining data at the request of a private party, there appears to be 
no mechanism available to award recipients to offset the administrative 
costs of complying with the required change in policy. Increased 
administrative costs associated with grants come at the expense of 
research. Increased administrative costs are not, in themselves, a 
reason not to move forward with policies in the public interest. 
However, we should have taken the time to consider what the nature and 
level of the costs of compliance with this provision were likely to be.
  Obviously, some groups feel that an information-sharing problem 
exists. They may now feel that their concerns have been addressed. 
However, documentation of this problem has been no more than anecdotal. 
What we do know is that our nation has derived immeasurable public and 
private benefits from government-sponsored research. We should not 
jeopardize this enterprise by taking a hasty, ill-considered approach 
to remedy an alleged problem. If this problem is serious enough to 
require legislative remedy, then it is certainly serious enough to 
receive reasoned consideration by Congress. I encourage my Colleagues 
to join me in repealing this provision, and giving this issue the 
attention it deserves by proceeding through the normal process which 
gives all groups an opportunity to participate in the legislative 
process.

                                    Congress of the United States,


                                     House of Representatives,

                                 Washington, DC, December 7, 1998.
     Hon. Jack Lew,
     Director, Office of Management and Budget, Old Executive 
         Office Building, Washington, DC.
       Dear Mr. Lew: We are writing to you concerning the 
     provision included in H.R. 4328, Making Omnibus Consolidated 
     and Emergency Supplemental Appropriations for FY 1999, which 
     requires OMB to amend Section -3.6 of Circular A110 to 
     require Federal agencies to ensure that all data produced 
     under grants made to institutions of higher education, 
     hospitals, and non-profit organizations will be made 
     available to the public through procedures established under 
     the Freedom of Information Act (FOIA).
       While we all support the free and open exchange of 
     information, we have concerns that there may be a number of 
     negative, unintended consequences for the conduct of research 
     under federal awards if this Circular is amended in haste and 
     without sufficient input from federal grand-awarding agencies 
     and grant recipients. An amendment of similar intent was 
     offered and defeated in the House Appropriations Committee 
     one year ago because of Members' concerns about negative 
     impacts of making this policy change on federally-funded 
     research. At that time, a number of agencies provided 
     comments indicating numerous potential problems associated 
     with making all data from federal awards subject to FOIA. We 
     believe these concerns were and are still valid. We urge you 
     to consider the agencies' concerns as you develop the 
     required proposal.
       One area of concern pertains to research involving human 
     subjects. Public health and bio-medical research requires the 
     voluntary participation of human subjects. Volunteers 
     currently make agreements with researchers and their 
     institutions to divulge personal medical information on the 
     condition that their information will remain strictly 
     confidential. They do this with the understanding that they 
     are making this agreement with the research institution and 
     not with the federal government. Although FOIA provides 
     protections for some types of information, the provisions may 
     not be adequate to ensure confidentiality. Even if they were, 
     we believe individuals will be reluctant to divulge sensitive 
     personal information knowing that this information 
     effectively becomes the property of the U.S. Government as an 
     official government record. Significant loss of voluntary 
     participation in public health and bio-medical research would 
     be devastating.
       We are also concerned that this provision could facilitate 
     the theft of intellectual property. We have numerous 
     statutes, such as the Bayh-Dole Act, which provide 
     protections for the intellectual property of researchers' 
     receiving federal awards. Mandating the accessibility of all 
     data produced under a federal award would undermine the 
     protections for researchers intellectual property rights 
     guaranteed under copyright and other technology transfer 
     laws. Although Circular A110 does not cover federal awards to 
     businesses and contractors, there are numerous instances of 
     university-private sector partnerships in which private and 
     federal dollars are intermingled within research projects. 
     While privately-funded research will not be subject to FOIA, 
     companies may be reluctant to continue some areas of joint 
     research with federally-funded institutions who must comply 
     with this mandate because of ambiguities created in the 
     determination of which data would or would not be subject to 
     FOIA.
       We are also concerned about the potential for increases in 
     administrative burdens and costs for granting agencies and 
     for award recipients. Universities and other grant receiving 
     institutions are likely to feel compelled to create formal, 
     centralized procedures for responding to requests for data 
     and for implementing the requirements of FOIA. While the 
     language of the Omnibus Bill indicates that agencies could 
     charge a user fee for obtaining data at the request of a 
     private party, there appears to be no mechanism available to 
     award recipients to offset the administrative costs of 
     complying with the required change in policy. Increased 
     administrative cots associated with grants come at the 
     expense of research. Increased administrative costs are not, 
     in themselves, a reason not to move forward with policies in 
     the public interest, but we would like to ensure that the 
     benefits of making this change are commensurate with the 
     costs. We encourage your office to explore this question and 
     to work with agencies and award recipients to keep any 
     required administrative costs to a minimum.
       The above-mentioned concerns represent a few examples of 
     the problems that we wish to see avoided in implementing this 
     provision. Consequently, we urge you to solicit input from 
     all federal grant-awarding agencies, and from the higher 
     education, hospital, and non-profit grant recipient community 
     before moving forward with this change.
       Unfortunately, Congress did not hold hearings to examine 
     whether the scope of potential problems with existing 
     practices with regard to data sharing is sufficient to have 
     warranted this type of change. Obviously, some groups feel 
     that a problem exists; however, documentation of this problem 
     has been no more than anecdotal. What we do know is that our 
     nation has derived immeasurable public and private benefits 
     from government-sponsored research. We do not wish to see 
     this enterprise jeopardized by taking a hasty, ill-considered 
     approach to remedy an alleged problem.
       We encourage you to take every opportunity to explore 
     methods of implementing this policy change in a way that 
     serves the laudable goal of facilitating the dissemination of 
     information without causing undue burdens or creating 
     barriers to the continued pursuit of new knowledge through 
     federally-funded research.
       We also request that you contact Anthony McCann 
     (Appropriations Committee; 225-3508) and Jean Fruci (Science 
     Committee 225-6375) to schedule a meeting for interested Hill 
     staff to brief us on your plans for implementing this 
     provision. Thank you for your attention and consideration.
           Sincerely,
         John Edward Porter, James T. Walsh, Sherwood L. Boehlert, 
           Constance A. Morella, Vernon J. Ehlers, George E. 
           Brown, Jr., Nita M. Lowey, David E. Price, Howard L. 
           Berman, Edolphus Towns, Bob Filner, Lynn C. Woolsey, 
           Carolyn McCarthy, Maurice D. Hinchey, Major R. Owens, 
           Henry A. Waxman, Albert R. Wynn, Lynn N. Rivers, Lois 
           Capps, James A. Traficant, Jr., Louise M. Slaughter, 
           Jose E. Serrano, Steven C. LaTourette.

           

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