New Rule Limits Digs into Researchers' Data
By Hans Johnson
In October researchers gave a guarded sigh of relief after the Office of Management and Budget (OMB) issued a new rule spelling out the public’s access to their data. The rule’s announcement marked a victory for professors and privacy advocates in a little-noticed fight with vast implications for federally funded faculty research.
An eleventh-hour insertion into the 1999 budget bill in Congress had threatened to allow individuals and corporations to use the Freedom of Information Act (FOIA) to gain access to the unpublished data of researchers who receive federal funds to carry out their work. The OMB was directed to draw up regulations to put the law into effect.
"The OMB made the best of a bad policy," says Ruth Flower, director of AAUP government relations, referring to the resulting regulations, which limit the application of FOIA to research officially cited in a federal law or regulation. (A proposed government regulation might, for example, be based on the findings of federally funded studies reporting the ill effects of a substance on human health, in which case data from the studies would be subject to FOIA.) The regulations expressly protect unpublished writings and researchers’ personal information from the scope of FOIA inquiries.
Over the past year, Flower has helped organize efforts to prevent exposure of researchers’ data to the conditions of FOIA. "The OMB really listened to the scientific groups and tried to devise a policy that would work," she says. "But we remain concerned about academic freedom in research. We know there are corporations and individuals who are opposed to certain kinds of research and may attempt to use FOIA to interfere with scientists’ work."
Flower cites the case of Deborah Swackhamer, a professor of environmental science at the University of Minnesota. In 1998 Swackhamer was measuring levels of toxaphene, a pollutant in fresh water in the Great Lakes, when she was served with a subpoena from a New York law firm on behalf of an undisclosed client. The subpoena demanded a massive turnover of documents, including accounts of her private conversations and records of her personal finances, under both the state open-records statute and FOIA.
When attorneys made available to Swackhamer through her institution found little recourse for her under either law, she complied. Despite the stress stemming from such intrusion into her work-in-progress, Swackhamer has continued her research.
But even with the new OMB rule, risks to researchers like Swackhamer prompt continued concern about research confidentiality. Nonacademics are likewise sounding the alarm. "This means that university researchers will be ethically bound to tell potential study subjects that absolute privacy cannot be assured by the researchers," says Gary Bass, director of the Washington-based open-government group OMB Watch. "Such notification to subjects may have a significant impact on quality of research," adds Bass, concluding that "the absence of clarifications in these areas will likely result in substantial legal activity."
But if enough citizens weigh in against the policy, says Flower, Congress may be persuaded eventually to rescind it altogether.
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