September 10, 1999

Mr. F. James Charney
Policy Analyst
Office of Management and Budget, Room 6025
New Executive Office Building
Washington, DC 20503

Dear Mr. Charney:

We are responding on behalf of the American Association for the Advancement of Science (AAAS), the world's largest multidisciplinary science association, to OMB's "Request for Comments on Clarifying Changes to Proposed Revision on Public Access to Research Data," published in the Federal Register, August 11, 1999. We appreciate OMB's most recent effort at interpreting the statutory provisions contained in P.L. 105-277, requiring awarding agencies to ensure that data produced with federal funds are made available to the public through FOIA. Although AAAS believes that the use of FOIA to mandate disclosure of research data is bad public policy, we acknowledge OMB's good faith effort to address the concerns of the scientific community with its earlier proposed revision of Circular A-110 (Federal Register, February 4, 1999).

We continue to worry that the law will invite those who feel threatened by research to use it as a legal tool to harass scientists and to disrupt and delay ongoing research with which they disagree. In light of this concern, we strongly support a provision that would limit the applicability of the law to regulations with an impact threshold of $100 million and above. We believe that this threshold, while not fully resolving our concerns, would act as an important deterrent to nuisance lawsuits and harassment. This limit would also have the advantage of not imposing excessive cost burdens on taxpayers for regulations with relatively little impact. We applaud OMB's suggestion of limiting the scope of the provision revision in this way.

AAAS generally supports the proposed definition of "research data" and the exclusions specifying what types of material will not be considered as falling under the definition. We strongly recommend, however, that a scientist's lab notebooks be incorporated into the list of excluded materials. These notebooks often include early and provisional interpretations by scientists, confidential material, speculative hunches, and other matters considered as essential components of scientific inquiry. Researchers need the freedom to speculate, to make inferential leaps that may not be fully justified at that particular time without fear that these tentative ruminations will be used later to embarrass or harass them.

We are pleased with the definition of "published" that refers to "research findings...published in a peer-reviewed...journal", or when a "Federal agency publicly and officially cites to the research findings in support of a regulation." This restricted definition, we believe, will help to ensure that researchers can engage in research without fear that they will be forced to release their research prematurely.

We strongly favor limiting the scope of the revisions to research findings that support a regulation for which notice and comment are required under the Administrative Procedures Act. We agree with OMB that to apply the revisions to a wider range of government activities, many of which would have a very tenuous link to specific research awards, would be unduly burdensome on the agencies and researchers, and probably unworkable. However, we do want to recommend an important addition to this provision. AAAS believes that agencies issuing a regulation should be required to notify in advance both researchers and the funding agencies involved when they plan to cite their data as a basis for the regulation. This would have two advantages. It would give researchers and awarding agencies time to decide how to respond to FOIA requests, and it would free other researchers conducting studies in that area of policy from the need to engage in such preparations.

Finally, we urge that OMB make an explicit ruling that the final revision applies only to awards made after the revision's effective date. This would respond to concerns that FOIA requests could be applied to data from studies done years, if not decades ago.

We commend OMB for interpreting a law that AAAS believes is seriously flawed in a manner that is reasonably responsive to the concerns of the scientific community. We hope our comments are helpful. We stand ready to work with OMB and others in crafting a policy acceptable both to makers and to the scientific community.

Sincerely,

M.R.C. Greenwood
Chair, Board of Directors, AAAS
Chancellor, University of California, Santa Cruz

Stephen Jay Gould
President, AAAS

Mary L. Good
President-elect, AAAS
Managing Member, Venture Capital Investors, LLC