Sharing Research Data (1985) / Chapter Skim
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The Role of Legal Policies in Data Sharing
The Role of Legal Policies in Data Sharing
Pages 148-198
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From page 148... ...
Of course, if the person seekJoe Shelby Cecil is at the Federal Judicial Center, Washington, D.C.; Eugene Griffin is in the Department of Psychology at Northwestern University, Evanston, Illinois. We wish to thank Hugh O'Neill, Gilbert Beebe, and other members of the American Society of Access Professionals for assisting us in sorting out the policies of the various federal agencies in disclosing research data.
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From page 149... ...
The proprietary interests of primary researchers are recognized through copyright laws.S The interests of data requesters are acknowledged in exceptions to copyright protection and in statutes and case
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From page 150... ...
Legal standards in this area are well developed. The Freedom of Information Act provides a mechanism for data requesters and others to gain access to anonymous federal records.
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From page 151... ...
The rights of those seeking access to data and the rights of research participants are very limited.9 Since there is no specific case law or legislation discussing proprietary rights in privately developed research data, those rights must be deduced from the general protection offered to intellectual property by the copyright laws. However, formal copyright protection is not the only means researchers have of protecting their investments.
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From page 152... ...
Copyright Protection of Research Data Sets The specific policy for obtaining the public benefits is expressed in the Copyright Act, which reflects a congressional determination of the optimal balance between the proprietary rights of those who create the information and the public benefits from distribution of that information. 14 According to the Copyright Act (§ 102)
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From page 153... ...
Consequently, copyright protection extends only to "original works of authorship" (Copyright Act, §102(a) ; see also Nimmer, 1980:2.011.
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From page 154... ...
Two of the factors, the nature of the use and the economic consequences of the use, seem to be most important in determining whether a use qualifies for the exception to copyright protection (Freid, 1979:46~7; Squires, 1979:216,232~. In general, a use that would otherwise be an infringement will be permitted if the use is for a noncommercial educational purpose and results in no apparent economic injury to the copyright holder (Freid, 1979:4691.
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From page 155... ...
Though interpretation of the Court's standard of proof of economic injury is somewhat confused, 34 it seems clear that the holder of a copyright will have a difficult time of proving infringement when the copyrighted work is used is a way that furthers a noncommercial scholarly or educational purpose. The fair use section of the Copyright Act, along with its legislative history and judicial interpretations, suggests that the use of a copyrighted data set by a researcher for purposes of reanalysis or some over noncommercial scholarly pursuit will not be considered an infringement of the copyrighted work; the difficulty a pruna~y researcher would have in demonstrating a market for the data set, much less a diminution in market value in the data set as a result of its use for research purposes, suggests that a broad range of scholarly uses of the copyrighted work will be permitted without resulting in an infringement of the copyright protection afforded the primary researcher.
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From page 156... ...
ACCESS TO RESEARCH RECORDS MAINTAINED BY FEDERAL AGENCIES Records maintained by federal agencies can be a rich source of research data.35 However, obtaining access to agency records can be a difficult problem.36 Unlike data sets developed by private researchers, records maintained by federal agencies are governed by a web of federal statutes that are "inconsistent at best and chaotic at worst" (Commission on Federal Paperwork, 19771. These statutes determine the rights of researchers who seek access to federal records.
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From page 157... ...
Finally, the interaction of the Freedom of Information Act and the Privacy Act is discussed in relation to requests for identifiable information when federal agencies are unwilling to disclose the inflation. Request for Anonymous Records for Research PurposesThe Freedom of Information Act The Freedom of Information Act (FOIA)
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From page 158... ...
The first requirement, that the information be commercial or financial, has been narrowly def~ned.59 For example, information has been held to be commercial or financial when it contained "knowledge of production, overhead and operating costs, levels of profit, sales and pricing data, as well as other factors."60 Anonymous research records do not generally meet this criterion. Documents concerning the evaluation of federally funded medical services were held not to be commercial information, since they were not "data concerning fees, payment schedules, or other commercial arrangements.
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From page 159... ...
The court agreed with an administrative hearing officer's findings that the trade secret exemption did not apply, since: The information in the requested materials is not confidential, commercial or financial information. [The researchers do]
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From page 160... ...
More interestingly, in Consumers Union v. Veterans Administration7s the court found that certain data concerning the testing of hearing aids did not qualify for nondisclosure under exemption 4, yet, by applying its "equity jurisdiction"76 the court still decided to withhold some of the information since it might mislead the public and result in the government's receiving a more limited selection of hearing aids which, in turn, would curtail its research program.77 Thus, it appears that the trade secret exemption to the Freedom of Information Act will not restrict the release of agency research infonnation when that data is not identifiable unless such release might "impair the government's ability to obtain necessary information in the future" or substantially harm a business's competitive position.
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From page 161... ...
We find no evidence in the record to support that proposition.83 The Role of the Privacy Act in Regulating Disclosure of Identifiable Records Maintained by Federal Agencies The Freedom of Information Act provides researchers with a mechanism to obtain access to anonymous federal records even if the federal agency is reluctant to release them. But some research purposes require identifiable records (see Boruch and Cecil, 1979~.
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From page 162... ...
grant access by individuals to Heir identifiable records maintained by federal agencies; (2) ensure Hat existing information is bow accurate and timely, and limit He collection of unnecessary information; and (3)
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From page 163... ...
In recognition of legitimate needs for identifiable information, the Privacy Act carves out 11 categories of exceptions to the consent requirement. For instance, an agency may, at its discretion, disclose records without prior written consent to officers and employees of the agency who have a need for the record in the performance of their duties.93 Other exemptions include disclosures that are required by the Freedom of Information Act; to the Bureau of the Census for planning or carrying out a census, survey, or related activity under Title 13; to the General Accounting Office to permit auditing of federal programs; and in emergency circumstances involving the health and safety of any individual.
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From page 164... ...
Restrictions on Researeb Access to Agency Record Systems by the Privacy Act of 1974 The Privacy Act's prohibition on disclosure of identifiable information without the prior written consent of the individual can sharply restrict the use of identifiable federal records for research purposes. Researchers usually seek access to agency record systems either to obtain a sample of individuals for anticipated research or to supplement existing research information.'°~ The consent requirement can interfere with both of these activities.
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From page 165... ...
103 But some researchers outside the agency have found the consent requirement a frustrating hurdle.~04 At hearings of the Privacy Protection Study Commission, a number of researchers who rely on file linkage to conduct longitudinal research were sharply critical of the potential for disruption of their research by the restrictions of the Privacy Act,~05 although some of these problems have apparently been avoided by designation of research as a "routine use" of many of the most important systems (Bebee, 1981:661,666~.~°6 However, without such a designation, the Privacy Act represents a considerable obstacle to researchers who seek to use federal records to identify or locate persons they wish to include in their sample of research subjects. Several of the exemptions to Me disclosure requirements in the Privacy Act may be of some aid to researchers.
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From page 166... ...
~2~) permits disclosure of agency records required to be disclosed under the Freedom of Information Act.
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From page 167... ...
Request for Identifiable Information for Research Purposes When an Agency is Unwilling to Disclose As mentioned above, both the Freedom of Information Act (FOLD) and the Privacy Act of 1974 deal with the release of identifiable records by the federal
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From page 168... ...
However, under either of these interpretations release of identifiable information will have to meet at least the standards of the Freedom of Information Act. The major exemption used to prohibit disclosure of identifiable information under the FOIA is exemption 6, which applies to "personnel and medical and similar files the disclosure of which would constitute a clearly unwamnted invasion of privacy." While there have been many court cases concerning this exemption,~9 including two Supreme Court cases, it is still not clear what constitutes a "clearly unwarranted invasion of privacy." Nonetheless, the Supreme Court has suggested that exemption 6 permits the withholding of information only when two requirements have been met: [Flirst, the inflation must be contained in personnel, medical or "similar" files, and second, the infonnation must be of such a nature that its disclosure would constitute a clearly unwarranted invasion olpersonal privacy.
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From page 169... ...
Department of HEWS a group sought access to agency records that evaluated federally funded medical services, including information from hospital profiles, patient records, and physician profiles. The district court held that the hospitals did not have a cognizable privacy interest but that the patients and physicians did.
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From page 170... ...
election regulations could be conducted.~33 Lists of names and addresses were also disclosed when the requester wished to lobby for those persons. ~34 The court ordered that an agency preserve certain records to avoid mooting an FOIA request when the plaintiff sought to identify parties for an antitrust class action.
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From page 171... ...
In summary, the confusion regarding research access to identifiable data under the Privacy Act becomes even greater when identifiable information is sought under the Freedom of Information Act. Although He courts have ordered the release of some identifiable records under the FOIA, the relationship between He FOIA and He Privacy Act continues to be controversial.
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From page 172... ...
The committee then sought to obtain access to the research data under the Freedom of Information Act. 145 The case was furler complicated by He involvement of the federal agency in authorizing a review of the findings Although no employees of the institute reviewed the research records of the grantee, He institute did contact in
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From page 173... ...
The Biometric Society issued a report to the institute in 1974 concluding that the university group results were "mixed" but '`moderately seong." The researchers seeking access to the data under the Freedom of Information Act found no friend in the courts. The Court of Appeals denied the FOIA request, concluding that records of grantees are not "agency records" since the FOIA applies only to records that have been "created or obtained .
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From page 174... ...
Justice Brennan contended that In some circumstances the relationship between an agency and a grantee, and the importance of the information in developing public policy, can transform the research records of a grantee into "agency records" within the meaning of the Freedom of Information Act, therefore making them available to the public. Justice Brennan noted that the purpose of the Freedom of Information Act was to "open the processes of government to public inspection," and that "[nlothing in the legislative history suggests that Congress meant to allow agencies to insulate important steps in decision making on the basis of technical niceties of who 'owns' crucial docurnents."~54 Justice Brennan concluded: Where the nexus between the agency and the requested information is close, and where the importance of the information to public understanding of the decisions or the operation of the agency is great, I believe the congressional purposes require us to hold that the information sought is an "agency record" within the meaning of the Freedom of Information Act....
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From page 175... ...
In that case, several reporters, along with representatives of the American Historical Association and the American Political Science Association, attempted to gain access to telephone notes made by Henry Kissinger while he was Secretary of State. They sought to rely on the Freedom of Information Act.
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From page 176... ...
. creates an incentive for outgoing agency officials to remove potentially embarrassing documents from their files in order to frustrate future FOIA requests." He interpreted the Freedom of Information Act to modify the congressional scheme expressed by He Federal Records Act of 1950 and the Records Disposal Act and to require an agency to produce requested documents if it retains a legal right to the custody of those documents wrongfully removed from its files.
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From page 177... ...
The Commission on Federal Paperwork (1977) suggested that federal contractors arid grantees should be required to comply with the Privacy Act (see also Privacy Protection Study Commission, 1977, and Office of Federal Statistical Policy and Standards,1980b)
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From page 178... ...
The absence of effective legal standards in this circumstance suggests an important role for professional guidelines. Such guidelines can recognize the rights of primary researchers to be the first to publish their findings, while encouraging data sharing once those proprietary interests have been realized.
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From page 179... ...
While federal regulation of agency records leaves little opportunity for professional guidelines, there is a clear need for researchers to contribute to restructuring the legal standards in this area. Though the Freedom of Information Act is quite helpful in obtaining a wide range of anonymous federal records, it also permits access to research proposals and other information that may trespass on the proprietary rights of those who are seeking federal funding for their research, even if no such funding is granted.
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From page 180... ...
Recent Supreme Court decisions suggest that unless the research records are directly maintained by the federal agency, He FOLA will be an ineffective tool in obtaining access. Though the precedents are confusing and regulations vary from agency to agency, it appears that if an agency does not take possession of the research data, the agency can fund the research, participate in the design and development of the research, permit access by third parties to the data, base regulatory findings on the conclusions of the research, and yet thwart access to the records by persons and organizations the agency does not wish to have them.
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From page 181... ...
. This situation is very rare and appears to be governed by the standards discussed under circumstances involving access to agency records under the Freedom of Information Act (see below and Dickson, 1980)
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From page 182... ...
14. Copyright protection is part of a larger body of law, lmown generally as "intellectual proper~." This broad area also includes patent protection and trade secret protection.
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From page 183... ...
The statute seems to contemplate copyright of machine readable data sets, since copyright protection attaches to works, "in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced or otherwise communicated, either diremly or with the aid of a machine or device" (Copyright Act §§102, 117 (1976)
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From page 184... ...
As discussed above, if a second researcher copies the facts in the principal researcher's data set, but varies He arrangement, perhaps to permit some novel analysis, this vanation in selection and arrangement of facts may be an original contribution of the second researcher and may not infringe on the copyright of the principal investigator. The quantum of originality present in the work of the second researcher required to remove it from the constraints of copyright protection is not great.
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From page 185... ...
Imlay, general counsel, Administrative Office of the United States Court, November 16, 1978: "[Clouts of the United States and the Administrative Office are exempt from coverage under The Freedom of Information Act] ." See also 5 U.S.C.
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From page 186... ...
. An amendment to the Freedom of Information Act in 1977 limited this exemption to records governed by conf~dentiality statutes that require the records to be withheld from Me public; confidentiality statutes that permit the exercise of discretion in withholding records are not adequate to meet the standards of this exemption: Government in the Sunshine Act, Pub.
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From page 187... ...
The rule that will be followed, therefore, is this: where agency records are not exempted from disclosure by the Freedom of Information Act, a court must order their disclosure unless the agency proves that disclosure will result in significantly greater harm than good. Because the Act was intended to benefit the public generally, it is primarily the effects on the public rather than on the person seeking the records that must be weighted": 301 F
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From page 188... ...
examined the practices of a number of criminal justice agencies in permitting research access to agency records and found that there was no general "chilling effect" on criminal Justice research due to the Privacy Act and related privacy and confidentiality statutes. Access to such records is typically governed by specific statutes and regulations that apply to individual agencies and agency records.
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From page 189... ...
strongly endorsed the use of administrative records for research and statistical purposes. For examples and a discussion of agencies sharing administrative records for research purposes, see Privacy Protection Study Commission (1977:588)
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From page 190... ...
Efforts by the Office of Federal Statistical Policy and Standards (1978) and by the Privacy Protection Study Commission to identify instances of injury resulting from improperly disclosed federal records turned up no examples.
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From page 191... ...
116. A routine-use provision that permits access to identifiable records for research, which appears in many record systems notices of the Department of Health and Human Services, reads as follows: "A record may be disclosed for a research purpose, when the Department: (A)
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From page 192... ...
141. There have been a number of legislative proposals to amend the Privacy Act to permit greater access for research purposes; see, for example, the Privacy of Research Records Act, introduced in the House as H.R.
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From page 193... ...
. However, this decision was not based substantially on the raw data of the University Group study, but on reference to the study as the basis of an expert opinion.
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From page 194... ...
1983 Proposed legislation to improve statistical and research access to federal records.
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From page 195... ...
Dickinson Law Review 81:469-493. 1981 Applying the Freedom of Information Act to tax return information, Georgetown Law Journal 69:128~1307.
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From page 196... ...
1975 Privacy and the Freedom of Information Act. Administrative Law Review 21:27~294.
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From page 197... ...
Boston College Industrial and Commercial Law Review 17:91-106. 1978 Applying the Freedom of Information Act in the area of federal grant law: exploring an unknown entity.
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From page 198... ...
1978 The Consequences of the Recommendations of the Privacy Protection Study Commission for Longitudinal Studies. Paper presented at the Life History Research in Psychopathology Meeting, Cincinnati, Ohio.
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