The public's right to know

By Richard McCarty
APA Executive Director for Science

As 1998 came to a close, behavioral scientists throughout the country were nothing short of giddy. After all, Congress had just approved a substantial budget increase for the Social, Behavioral and Economic Sciences Directorate at the National Science Foundation (NSF) and a whopping 15 percent increase--amounting to $2 billion--for the National Institutes of Health (NIH). Momentum for doubling the NIH budget within five years was gaining widespread bipartisan support, and behavioral science could expect to benefit in significant ways. Unfortunately, there were a few storm clouds on the horizon.

For one, members of Congress have begun to second-guess themselves and are wondering if NIH can wisely spend its $2 billion windfall. How Congress perceives this issue could be an important factor in determining the magnitude of the NIH budget increase for fiscal year 2000. To that end, NIH Director Harold Varmus and his staff are working hard to maintain Congress' confidence in their ability to invest the money for the ultimate benefit of the public supporters of federally funded research (a.k.a. taxpayers). Nevertheless, expect unprecedented oversight of NIH programs by the Congress and the public.

Another interesting thing happened late in 1998. On the way to passing the Omnibus Spending Bill (Public Law 105-277), which included the appropriations bills for NIH and other federal agencies, a member of Congress added a provision at the last minute that directed the Office of Management and Budget (OMB) to revise a law known as Circular A-110.

Sounds harmless enough to this point, but wait until you hear the rest of the story. The revisions to Circular A-110 require federal granting agencies, including NIH and NSF, to "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" (FOIA). The final version of the appropriations bill was so large it could be used as a doorstop for the gates of the White House, so the FOIA provision was easy to overlook. However, this issue could be a major problem for psychological scientists as the details of the reporting procedures are hammered out.

FOIA and the law of unintended consequences

By the time this column appears, a significant number of you may be tired of hearing about FOIA. Some Washington insiders have referred to this as the "paperwork creation act of 1998."

What is the bottom line for psychological scientists? The short answer is that it is too early to tell. There are some definitional problems that must be addressed as OMB seeks to develop a policy that will work for all parties. The original intent was to limit the definition of "all data produced" to the information used by the federal government in developing policies and rules. I don't know about you, but that still seems to be a problem to me.

There is often a lag between the appearance of research findings in the literature and the translation of those research findings into public policy. And further, who defines the body of knowledge that contributes to a given federal policy or rule? How long will an investigator need to retain all data generated during the period of a federal grant? Who will determine the charges and who will pay the costs of producing the reams of data normally generated during a multi-year grant?

Although exceptions will be made for requests for data that place at risk the confidentiality of human research participants, there remain issues of privacy and intellectual property rights that must be given careful consideration. Will animal researchers be forced to turn over laboratory notebooks? These are but a few of the unanswered questions that have surfaced since this matter first came to the attention of the scientific community.

Potential for harm

FOIA requests could present many challenges to psychological scientists. Those who submit the requests for "all data produced" may do so to discredit the work or the policy implications that result from a particular line of research. Others may seek to curtail animal research by keeping a research team at the photocopier instead of in the laboratory. I'll leave it to your imagination to come up with some equally unfortunate scenarios if great care isn't exercised as this policy is developed.

There is a ray of hope. Rep. George Brown (D­Calif.) has introduced a bill (HR 88) that would repeal the directive to OMB to develop changes in FOIA relating to federally funded research. At the very least, this bill may stimulate congressional hearings that will consider how to weigh the public's right to have access to research data against the scientist's right to create new knowledge instead of new copies of data files.



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