[Congressional Record Volume 145, Number 106 (Monday, July 26, 1999)]
[Senate]
[Pages S9233-S9234]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. MOYNIHAN:
  S. 1437. A bill to protect researchers from compelled disclosure of 
research in Federal courts, and for other purposes; to the Committee on 
the Judiciary.


          thomas jefferson researcher's privilege act of 1999

  Mr. MOYNIHAN. Mr. President, it is with great pleasure that I rise 
today to introduce the Thomas Jefferson Researcher's Privilege Act. 
This bill protects the rights of researchers in their work. This is an 
issue that Professor Robert O'Neil of the University of Virginia Law 
School has done much to advance, and I am extremely grateful for all 
his assistance.
  Two points, followed by a coda, if I may. The first point is that the 
Thomas Jefferson Act gets to the heart of the first amendment and the 
principles that our nation was founded on. This Act would protect 
researchers from the compelled disclosure of their research, studies, 
data, surveys, etc. Too often researchers are forced to turn over this 
information in open courts. This interrupts their research and makes it 
nearly impossible for them to finish and publish their research. If 
researchers are unable to publish their findings, then the flow and 
dissemination of information are choked off. This runs counter to the 
essence of the first amendment.
  We need a uniform standard that protects the work of researchers. 
Some courts have ruled in favor of researchers while others have ruled 
against them. We need consistency in this field, where researchers feel 
comfortable to produce their research and do not have to fear that it 
will be taken from them. This bill will provide that consistency and 
comfort.
  To the second point. We have reached a time in our society where we 
have to decide between what should be shared and what should be 
protected. In this case, it is very important to society as a whole to 
protect a researcher's notes and data before they are ready to be 
released. It is from these data and research that ideas and thoughts 
are formed, ideas that will eventually help man and society progress. 
If a researcher's data are released prematurely, then their ideas may 
never bear fruit. In the long run, protecting a researcher's data will 
only lead to more information and ideas in the future. This is what the 
first amendment is all about.
  No one describes the utility of free speech and the dissemination of 
original ideas better than John Stuart Mill. In On Liberty, he argues 
that neither government nor a public acting informally may legitimately 
use coercion to stifle free expression, and the reason he gives is a 
utilitarian, or at least a consequentialist one. If the opinion is 
right, the human race is deprived of it; if wrong, they are deprived of 
the opportunity to reinforce--through surviving a challenge--their 
understanding of what is right. The quashing of opinion is therefore, a 
much more far-reaching evil than the mere loss of something valuable to 
the individual, for it deprived society at large of something of 
benefit. This is exactly what happens when researchers are forced to 
turn over their work prematurely and prevented from developing and 
sharing their thoughts. The Thomas Jefferson Bill would help rectify 
just this situation.
  I conclude by saying that I could think of no better namesake for 
this bill than Thomas Jefferson, our third president and author of the 
Declaration of Independence. A philosophical statesman rather than a 
political philosopher, he contributed to democracy and liberalism a 
faith rather than a body of doctrine. By his works alone he must be 
adjudged one the greatest of all Americans, while the influence of this 
energizing faith cannot be measured.
  One of Jefferson's greatest contributions to our nation was his 
protection and advocacy of free speech. From the Declaration of 
Independence to the Virginia Statute for Religious Freedom to the 
founding of the University of Virginia, he was a passionate proponent 
of education, human liberty, and free thought. He wrote: ``If nature 
has made any one thing exclusive property, it is the idea, which an 
individual may exclusively possess . . .; but the moment it is 
divulged, it forces itself into the possession of everyone . . .'' 
Jefferson, always a step or several steps ahead of his age, understood 
the importance of the freedom of speech in the development of an 
individual and a nation.
  It is only appropriate that the Thomas Jefferson Researcher's 
Privilege Act be introduced in the month of July, when our nation 
declared its independence, and be named after Thomas Jefferson, one of 
our greatest political thinkers and one of our greatest advocates of 
the free mind.
  I ask unanimous consent that the Thomas Jefferson Researcher's 
Privilege Act be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

[[Page S9234]]

                                S. 1437

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Thomas Jefferson 
     Researcher's Privilege Act of 1999''.

     SEC. 2. FREEDOM OF INFORMATION REQUESTS.

       Section 552(b)(4) of title 5, United States Code, is 
     amended--
       (1) by inserting ``(A)'' after ``(4)''; and
       (2) by adding at the end the following:
       ``(B) data, records, or information, including actual 
     research documents, collected or produced in the conduct of 
     or as a result of study or research on academic, commercial, 
     scientific, or technical issues, including--
       ``(i) unpublished lecture notes, unpublished research 
     notes, data, processes, results or other confidential 
     information from research which is in progress, unpublished 
     or not yet verified; or
       ``(ii) any other information related to research, the 
     disclosure of which could affect--

       ``(I) the conduct or outcome of the research;
       ``(II) the likelihood of similar research in the future;
       ``(III) the ability to obtain patents or copyrights from 
     the research; or
       ``(IV) any other proprietary rights any entity may have in 
     the research or results of the research;''.

     SEC. 3. FEDERAL RULES OF CIVIL PROCEDURE.

       Rule 45(c)(3) of the Federal Rules of Civil Procedure is 
     amended--
       (1) in subparagraph (A)--
       (A) in clause (iv) by striking the period and inserting a 
     comma and ``or''; and
       (B) by adding at the end the following:
       ``(v) requires disclosure of data, records, or information, 
     including actual research documents, collected or produced in 
     the conduct of or as a result of study or research on 
     academic, commercial, scientific, or technical issues, 
     including--
       ``(I) unpublished lecture notes, unpublished research 
     notes, data, processes, results or other confidential 
     information from research which is in any progress, 
     unpublished or not yet verified, or
       ``(II) any other information related to research, the 
     disclosure of which could affect the conduct or outcome of 
     the research, the likelihood of similar research in the 
     future, the ability to obtain patents or copyrights from the 
     research, or any other proprietary rights any entity may have 
     in the research or results of the research.''; and
       (2) in subparagraph (B)--
       (A) in clause (iii) by inserting ``or'' after the comma; 
     and
       (B) by inserting after clause (iii) the following:
       ``(iv) requires disclosure of data, records, or 
     information, including actual research documents, collected 
     or produced in the conduct of or as a result of study or 
     research on academic, commercial, scientific, or technical 
     issues, including--
       ``(I) unpublished lecture notes, unpublished research 
     notes, data, processes, results or other confidential 
     information from research which is in any progress, 
     unpublished or not yet verified, or
       ``(II) any other information related to research, the 
     disclosure of which could affect the conduct or outcome of 
     the research, the likelihood of similar research in the 
     future, the ability to obtain patents or copyrights from the 
     research, or any other proprietary rights any entity may have 
     in the research or the results of the research.''.

     SEC. 4. FEDERAL RULES OF EVIDENCE.

       Article V of the Federal Rules of Evidence is amended by 
     adding after rule 501 the following:

     ``Rule 502. Privilege for research information

       ``A person engaged in the study or research of academic, 
     commercial, scientific, or technical issues may claim the 
     privilege to refuse to disclose data, records, or 
     information, including actual research documents, concerning 
     that study or research. Such person may refuse to disclose 
     unpublished lecture notes, unpublished research notes, data, 
     processes, results, or other confidential information from 
     research which is in any progress, unpublished or not yet 
     verified, and any other information related to research, the 
     disclosure of which could affect the conduct or outcome of 
     the research, the likelihood of similar research in the 
     future, the ability to obtain patents or copyrights from the 
     research, or any other proprietary rights any entity may have 
     in the research or the results of the research.''.

     SEC. 5. REPEAL OF REQUIREMENT REGARDING DATA PRODUCED UNDER 
                   FEDERAL GRANTS AND AGREEMENTS AWARDED TO 
                   INSTITUTIONS OF HIGHER EDUCATION, HOSPITALS, 
                   AND OTHER NONPROFIT ORGANIZATIONS.

       The fifth and sixth provisos under the subheading 
     ``salaries and expenses'' under the heading ``OFFICE OF 
     MANAGEMENT AND BUDGET'' under title III of the Treasury and 
     General Government Appropriations Act, 1999 (Public Law 105-
     277; 112 Stat. 2681-495) are repealed.

                          ____________________