Curses, FOIAed Again

Freedom of information battles academic prerogative.

by / November 30, 1999
The scientific community is up in arms about a short amendment slipped into the Treasury appropriations bill last year by Sen. Richard Shelby, R-Ala. The obscure provision, which received virtually no notice, requires that data used by federal grantees be made publicly available through the provisions of the Freedom of Information Act (FOIA). For the first time in nearly 20 years, questions about how far FOIA can reach in bringing records outside the custody and control of a federal agency under its provisions are being seriously debated. The House Government Management, Information and Technology Subcommittee held hearings on the provision in July.

Shelby's amendment has worked a role-reversal, putting the scientific and academic community on the side of nondisclosure, while business interests enthusiastically embrace the cause of openness. Part of that reason is due to the motivation behind the amendment. Shelby sponsored the change because the Evnironmental Protection Agency (EPA) refused to provide raw data from a Harvard University study on the dangers of small particulate emissions; the Harvard study was the basis for (EPA) regulations that many in the business community saw as draconian.

There were other complaints that government-funded studies on the dangers of tobacco were not available for analysis by outside groups. So Shelby slipped in his amendment requiring federal grantees, such as universities, hospitals and nonprofit organizations, to make their data available through the sponsoring agency. But the amendment pointedly neglected to saddle federal contractors with the same requirements.

What makes the situation even more interesting is that there is a 1980 Supreme Court decision on this exact issue, Forsham v. Harris. In the Forsham case, a public-interest group that disagreed with the conclusions of a federally funded study asked for access to the underlying data to analyze it themselves.

The Department of Health and Human Services had a right to the data, which was in the custody of the university grantee, but had never exercised that right and indicated it had no intention of doing so. In a case that put clear limitations on FOIA's reach, the court ruled that an agency had no legal obligation to retrieve the information and that only records in the custody and control of the agency were subject to FOIA's provisions.

Forsham was viewed as a major disappointment by the access community and its reversal by Congress frequently showed up on reform wish lists. A bill drafted primarily by the Society of Professional Journalists included provisions requiring agencies to retrieve such records. Only in the past few years have requesters successfully challenged the breadth of Forsham, particularly in a case filed by the Chicago Tribune for access to contractor records pertaining to a re-analysis of a breast-cancer study conducted under the auspices of the National Cancer Institute. But this decision focused on the degree of control the agency exercised over the work being done by the contractor in finding that the agency had de facto control of the records.

The Shelby amendment skirts the control issue completely, laying down a hard rule that grantee data is subject to FOIA. But saying this, the inevitable conclusion is not the wholesale disclosure of scientific data that the scientific/academic community seems to fear. The Shelby amendment only makes the records subject to FOIA. Exemptions for commercial information, privacy and the deliberative process privilege are likely to shield most of these records when push comes to shove. And the Office of Management and Budget, required under the Shelby amendment to revise its Circular A-110 to reflect guidance on this provision, has already issued a draft which narrows the scope of records to only those relied on by an agency in making a decision.

What Will Happen?

The much more bothersome question is how much effect the FOIA process will have in delaying or obstructing federal research. For years, government agency attorneys have complained bitterly that they are often inundated with FOIA requests from parties in litigation with their agency. These attorneys are convinced, probably correctly, that the requests are meant more to tie up their resources than to request information. Certainly, in circumstances such as this, one of the unintended consequences of FOIA can be to allow parties interested in tying up agency resources to do just that. Of course, one possible agency tactic in response could be to relegate the request to the end of a real or imagined backlog and delay answering it until a more auspicious opportunity presents itself.

Both sides have been staking out their positions, with the academic community hoping Congress will provide some relief and the business community hoping Congress will enforce the measure. The U.S. Chamber of Commerce posted its sentiments on its Web site: "If implemented properly, this rule will do more for regulatory reform than all the legislation passed in the last 10 years." But Nils Hasselmo, president of the Association of American Universities, wrote to Vice President Al Gore, "We are very concerned that such an effort could involve actions designed to discredit scientists and discourage researchers from addressing controversial topics."

Unfortunately, both sentiments are partly correct. The exclusion of federal contractors from these requirements makes it appear that the provision was aimed more at allegedly left-leaning academic and nonprofit organizations than it is at data used in federal decision-making generally. Congress needs to take further action before this provision can succeed or fail on its merits.

Harry Hammitt is editor/publisher of Access Reports a newsletter published in Lynchburg, Va., covering open-government laws and information-policy issues. E-mail
Harry Hammitt Contributing Writer