Origins of Congressional Action Regarding Public Access to Data

Kathy Casey
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 naïve 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 in A-110.

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.