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PUBLIC COMMENTS
CCHC Public Comments on Access to Publicly Funded Research Data
September 2, 1999
Citizens' Council on Health Care
1954 University Ave. W., Suite 8
St. Paul, MN 55104
F. James Charney, Policy Analyst
Office of Management and Budget
Room 6025
New Executive Office Building
Washington, DC 20503
Dear Mr. Charney:
Citizens' Council on Health Care is responding to the OMB
request for comments on the proposed revision of OMB Circular
A-110, "Uniform Administrative Requirements for Grants and
Agreements with Institutions of Higher Education, Hospitals, and
Other Non-Profit Organizations."
Citizens' Council on Health Care is a national non-profit
contributor-supported organization located in Minnesota which
provides analyses of state and federal health care policy to the
public.
Regarding the new law to allow public access to
federally-funded research data, we offer the following comments on
OMB's proposed interpretations of the words "data," "published,"
and "used by the Federal Government in Developing Policy or
Rules," as well as on the $100 million impact threshold for
access, and the cost charged to requesters of information.
"DATA"
While Public Law 105-277 specifies that Federal awarding
agencies "ensure that all data produced under an award will be
made available to the public through the procedures established
under the Freedom of Information Act," the OMB interpretation
leaves much data inaccessible to the public. Senator Shelby,
author of the law further specified that "At a minimum, data
should include all information necessary to replicate and verify
the original results and assure that the results are consistent
with the data collected and evaluated under the award."
The OMB proposal to permit research recipients of taxpayer
dollars to exclude any data that "in their judgment" is considered
"trade secrets, commercial information" or files "which would
constitute a clearly unwarranted invasion of personal privacy"
leaves volumes of information subject to nondisclosure. The
exclusion of data which may be copyrighted or patented does
warrant more discussion. Since taxpayers have fully or partially
funded the research, does the researcher have a right to own the
patent and claim the financial benefits produced by the patent?
"PUBLISHED"
CCHC finds the OMB definition too narrow in light of the
language of P.L. 105-277. To avoid public scrutiny, research
results may never be published or publicly cited, but used
none-the-less directly or indirectly to develop and direct public
policy. OMB may do well to define "publicly cited" in the final
rule. We present a scenario for your consideration. If a citizen
or an organization desires information on taxpayer-funded
research, asks an agency what, if any, studies are being
conducted, or have been conducted, about a certain subject, and
then requests the data, what actions will be taken by the agency?
We presume that the agency would first check on whether the
request meets the "publicly cited" test by checking all testimony
and public documents to see if the research was ever cited
officially. If not, the agency could, according to the proposed
OMB definition, forbid disclosure of the data. This will
necessitate creation of a data system whereby every mention of
research is tracked to provide easy determinations obout public
access. This system will likely present a brick wall to the public
which thought that what the law grants (access to "all data
produced under an award") is what they can receive. Resistance by
the research community does not give the OMB a license to
interpret and administrate the law differently than it is written.
USED BY THE FEDERAL GOVERNMENT IN DEVELOPING POLICY OR RULES
To limit public access to only the data which is cited in
proposed regulations is a misinterpretation of the statute.
Although OMB believes that "it does not appear that P.L. 105-277
can be readily and easily implemented outside of the regulatory
context," the statute, written to require access to "all data
produced under an award" was enacted into law and is not limited
to research data solely for the development of federal
regulations. Senator Lott was clear when he stated that the OMB
Circular A-110 should "require Federal awarding agencies to ensure
that all research results, including underlying research data,
funded by the Federal Government are made available to the public
through the procedure established under the Freedom of Information
Act." All does not mean some. Surveys, guidance, assessment and
reports used by agencies are created through research, used for
policy development, and paid for by taxpayers. As such, they
should not be excluded from public oversight.
In addition, for research specified in rulemaking, given the
short time frame for comments, the data should be immediately
available to the public at the time the proposed regulation is
first published. Accumulation of the data should be an automatic
action taken by the federal agency in preparation for many
requests.
$100 MILLION IMPACT THRESHOLD
Nowhere in the statute is public access limited according to
an impact assessment. The data should be made available regardless
of the dollar figure attached to the impact. One person's idea of
financial impact is not necessarily accurate for another person,
or indeed for the entire population. To include this limitation is
to provide an enormous loophole through which agencies and
research organizations may escape public scrutiny.
COST REIMBURSEMENT
If federal agencies are allowed to 'double' the fees by
assessing a FOIA fee and a P.L. 105-277 fee, this may in itself
impede public access. The agency which funds the research should,
for accountability purposes, require that all the data be sent to
the department for an audit of its accuracy. The fact that the OMB
might consider an additional fee to gather this information sheds
light on a possible accountability problem within federal agencies
regarding research grants. Therefore, the agencies should, as a
matter of business, have the data as available, if not more
available, than other data requests under FOIA. We therefore find
no need for additional fees above the traditional FOIA charges.
CONCLUSION
We respectfully insist that P.L. 105-277 be fully implemented
as directed in the statute. Thank you.
Sincerely,
Twila Brase, R.N.
President, CCHC
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Citizens' Council on Health Care
1954 University Avenue West, Suite 8, St. Paul, MN 55104
Phone: 651.646.8935 / Fax: 651.646.0100, e-mail
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