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OCR for page 148
The Role of Legal Policies
in Data Sharing
Joe Shelby Cecil and Eugene Gnff~n
INTRODUCTION
As an abstract principle, the sharing of research data is a noble goal and meets
with little opposition. However, when data sharing is attempted in a particu-
lar circumstance, the conflicting interests of the parities can thwart the ex-
change. A glance at the benefits and obstacles to data sharing discussed by
Hedrick (in this volume) reveals the reason: few of the benefits and most of
the burdens fall to the possessor of a data set. Of course, if the person seek-
Joe 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 disclos-
ing research data. Since we did not accept all of their suggestions, it may be assumed that the er-
rors that remain are our own. This manuscript was prepared for consideration by the
Subcommittee on Sharing Research Data of the Committee on National Statistics at its meeting in
1982.
148
OCR for page 149
Role of Legal Policies
149
ing the data set and the person possessing it are colleagues or if the sharing of
data is seen by the possessor as beneficial, then the exchange usually takes
place without difficulty. But if the possessor does not view the exchange as
beneficial, discussion of data sharing can turn quickly to conflict and allega-
tions of the rights and responsibilities of the venous parties. '
Conflict is rarely over the simple right of possession. More likely, it is
conflict in defining the limits of the proprietary interest in the data set retained
by the one who develops it. Clearly, one who devotes time and effort to
develop a data set has a right to capitalize on the investment through publica-
tion of findings based on the data, and an adequate return on this investment
may require several publications over a period of time. However, others may
wish to verify the initial findings, a purpose well grounded in the traditions of
science. As a conflict sharpens, the parties may look to the law in an effort to
define the extent of their rights. This paper discusses several areas of the law
that are relevant in defining the balance between these conflicting interests.
There is no specific body of law that addresses the sharing of research data.
In fact, most relevant legal standards fail to acknowledge the unusual nature
of research records.2 Researchers must turn to statutes and case law developed
for administrative records3 and to literatures for the standards to resolve their
differences. Since these standards fail to consider the unique characteristics
of research data, the results are awkward and unsatisfying. Little effort is
made to balance the proprietary rights of the primary researcher and the rights
of data requesters. In some circumstances the legal standards do not permit
adequate disclosure for data sharing, and in other circumstances they permit
such open disclosure that the interests of primary researchers in receiving rec-
ognition for their work are threatened. By specifying the legal relationships
among the parties, however, a role for professional standards and guidelines
can be seen. Professional standards will be most effective in defining data-
shar;ing practices in areas that are unregulated or where federal regulations
permit but do not require disclosure.
As discussed in Hedrick (in this volume), data sharing affects the interests
of at least five parties: the possessor of the data set, usually the person who
developed it; the data requester; the research participants; the scientific com-
munity; and society. Frequently the interests of these parties are in conflict.
The interests of data requesters and society generally favor access while He
interests of the primary researcher and the research participants generally op-
pose access (see Hedrick, in this volume).
While the law has not specifically attended to the problem of access to data
for research purposes, it has acknowledged in other contexts some of the inter-
ests of some of the parties. 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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150
Joe S. Cecil and Eugene Griffin
law allowing access to federal records.6 However, neither of these private
interests have received the legal recognition accorded to the public interest in
developing and having available accurate information for decision making.
Across a wide variety of situations, this underlying public interest in accurate
information guides the legal resolution of disputes between persons who seek
information and persons who possess it.
The legal standards governing access to research information vary with the
public or private employment status of the primary researcher and the source
of funding for development of the research record system. This paper consid-
ers three circumstances. The first circumstance involves access to research
records developed with private funds and in the possession of a researcher
supported by a private institution. This is the most basic circumstance, since
the proprietary rights of the primary researcher are not affected by public
funding of the research. Some proprietary rights are recognized through co-
pyright protection; however, copyright law offers less protection of proprie-
tary interests of a primary researcher than is available through simply with-
holding the data set. In this circumstance, professional standards can be most
useful in encouraging data sharing.
The second circumstance involves the other end of the spectrum, research
records developed and maintained by federal agencies. 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. Access to identifiable federal records is more problematic since the
restrictions of the Privacy Act of 1974 must be considered. The extent of fed-
eral regulation of agency records suggests a limited role for professional stan-
dards in this circumstance.
The Bird circumstance, combining elements of Me first two, concerns ac-
cess to research records developed and maintained by private researchers but
sponsored through public funding of the research. This is the most difficult
circumstance since He proprietary interest of He primary researcher must be
balanced against the broader interest of society, an interest derived from the
public sponsorship of He research. This is also an increasingly important cir-
cumstance considering He extent of federal support for scientific research.7
The lack of an effective mechanism for obtaining access to research records in
this circumstance also suggests a role for professional standards.8
ACCESS TO RESEARCH RECORDS MAINTAINED BY A PRIVATE
RESEARCHER SUPPORTED BY PRIVATE FUNDS
The first circumstance occurs when Here is a request for access to a data set
developed by an independent researcher supported by private funds. This si-
tuahon usually occurs when a data set is developed Trough an inexpensive la-
OCR for page 151
Role of Legal Policies
151
boratory study or from publicly available documents without federal funding
for the research. The lack of federal support for either the researcher or the
individual research project is the essential characteristic of this circumstance.
In such a situation the right of the researcher to control access to the data is
strongest, since the researcher's proprietary interest in the data is not com-
promised by public funding of the data collection. Such a researcher may re-
tain and use the information he or she develops just as any individual may ex-
ercise a private right over personal information. 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. Unlike authors or composers who must pub-
licly distribute their intellectual products to gain from their creation, research-
ers can benefit from the creation of a data set through publication of analyses
without distribution of a data set itself. A Protection under the copyright laws,
however, must offer incentives for public distribution that outweigh the bene-
fits of private possession if researchers can be expected to take advantage of
~em.
Public Benefit as the Basis of Copyright Protection
When researchers create a data set, they create objects of value, objects in
which they can claim a property right. But it is a property right that can be
difficult to protect since the property right is in information rather than in
some tangible good. i~ Copyright protection, developed to meet the needs of
authors and composers, can provide similar protection to researchers. The
foundation of copyright protection is in the Constitution, which gives
Congress the power to pass legislation (art. I, §81: "To Promote the Progress
of Science and Useful Arts, by Securing for Limited Times to Authors and
Inventors the Exclusive Right to their Respective Writings and Discoveries."
"Science" has typically been associated with copyright protection while
"Useful Arts" has been associated with patent protection.
This passage can be misinterpreted to imply a general property right in the
products of intellectual endeavors. However, the primary purpose of such
constitutional protection is to obtain "the general benefits derived by the pub-
lic from the labors of the authors" (Nimmer, 19801.~2 The Constitution seeks
to further the public benefits in "Science and Useful Arts" by guarding the
economic rights of authors and inventors (and researchers) in the intellectual
property they create. 13 Men the private interests of authors or researchers in
controlling dissemination of Heir intellectual product cannot be justified as a
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152
Joe S. Cecil and Eugene Griffin
means of obtaining an ultimate public benefit, those private interests will not
be sanctioned by the Constitution.
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), a copyright may be obtained for "original works of
authorship fixed in any tangible medium of expression."~5 As implied by the
language of the statute, the only two necessary characteristics for copyright
protection are originality and tangible expression. A research data set can
meet both of these requirements. Research data expressed in any tangible
form will qualify for protection, including data on computer tape, disks, paper
cards, or even scribbled data in a lab book. 16 While some forms of expression
may make it more difficult to obtain copyright protection, the form of the ex-
pression will not bar Me copyright as long as the expression "can be per-
ceived, reproduced, or otherwise communicated, either directly or with the
aid of a machine or a device."
Originality is the more fundamental requirement, since the Copynght Act
(§102) restricts protection to "onginal works of authorship" [emphasis
added]. Only a minimum level of originality is required, permitting copy-
right even if the resulting work is substantially similar to a work previously
produced (Nimmer, 1980:2.01tAl). Any nontrivial "distinguishable
variation" that results from an author's independent intellectual effort will
offer sufficient originality to support a claim for copyright (Nimmer,
1980:2.01[Bl; Denicola, 19811.
If a data set is an original expression of a researcher, as described above,
the data set can be protected as a ''compilation,,' defined by the Copyright Act
(§101~7 as:
A work formed by the collection and assembling of preexisting materials or of data
that are selected, coordinated, or arranged ir1 such a way that the resulting work as a
whole constitutes an original work of authorship.
Examples of works that have been protected as compilations include city tele-
phone directones,~8 interest and discount tables,~9 and other utilitarian collec-
tions of facts (Nimmer, 1980:2.04EBl). Although no instance in case law
was found, a scientist's collection of data, arranged in such a way as to permit
some meaningful analysis, would certainly qualify as a compilation under the
Copyright Act.20 Since a data set can be eligible for copyright protection, the
issue becomes whether the copyright law offers sufficient control over release
OCR for page 153
Role of Legal Policies
153
and distribution of the data to encourage researchers to choose this form of
protection over simple secrecy.
The copyright laws attempt to promote disclosure while protecting the pro-
prietary interest of the creator of a work. Consequently, copyright protection
extends only to "original works of authorship" (Copyright Act, §102(a); see
also Nimmer, 1980:2.011. This seemingly innocent phrase has been ~nter-
preted in ways that do not suit the needs of primary researchers. The emphasis
on the original work of the author or artist means that protection extends only
to the original expression of facts and ideas, not the facts and ideas them-
selves; a copyright on a data set will not give an exclusive right to the informa-
tion itself (Nimmer, 1980:2.01; Squires, 1979:205,213~.2' Thus, the copy-
right will not bar another researcher from creating an identical data set con-
taining the same facts and based on the same ideas if the second data set is
developed as an independent effort.22 This is true even if the purpose of the
second researcher is to duplicate the work of the primary researcher.23 While
the policy of the copyright law favoring dissemination may be met, a
researcher's interest in retaining control over distribution of the work product
may be lost.24
Even if the second data set is developed directly from the facts presented in
the copyrighted data set, either for a replication of the original analysis or for a
novel analysis, there may be no infringement of the copyright held by the pri-
mary researcher.25 In some circumstances, even direct copying of a co-
pyrighted data set will not be an infringement of the rights of the primary re-
searcher. This apparent infringement is justified by the doctrine of "fair use,"
defined by one commentator as a "privilege in others than the owners of a co-
pynght to use the copyrighted material in a reasonable manner without his
consent, notwithstanding the monopoly granted to the owner by the
copynght', (Ball, 1944, quoted in Freid, 1979~.26
The fair use doctrine was first developed by the courts as a means of avoid-
ing unnecessary hindrances to progress in the development of the arts and
sciences Mat could result from a strict interpretation of a copyright owner's
exclusive rights (Freid, 1979~.27 The Copyright Act recognizes fair use of a
copyrighted work, by limiting the exclusive rights of the copyright owner
(§107):
[T]he fair use of a copyrighted work, including such use by reproduction in copies
or phonorecords or by any other means specified by [section 106], for purposes such
as criticism, comment, newsreporting, teaching (including multiple copies for
classroom use), scholarship, or research' is not an infringement of copyright. In
determining whether the use made of a work in any particular case is a fair use the
factors to be considered shall include-
(1 ) the purpose and character of the use, including whether such use is of a com-
mercial nature or is for non-profit educational purposes;
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Joe S. Cecil and Eugene Griffin
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to die co-
pynghted work as a whole; and
work.
(4) the effect of the use upon the potential market for or value of the copyrighted
The four factors listed in section 107 form the test for determining if a use
that overwise might be an infringement may be permitted as a fad use of a co-
pyrighted work. 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 appar-
ent economic injury to the copyright holder (Freid, 1979:4691. Scholarly and
educational uses of copyrighted material have received great deference in de-
termining if a use is to be permitted: courts have permitted liberal use of co-
pyrighted material if science and the arts are ~ered.28 One case noted that
the doctrine of fair use will be given broader scope when a "field of learning"
is concerned, and a narrower scope when the use is solely for commercial
purposes.29 This deference to scholarly uses is also evident in the legislative
history of the Copyright Act.30
Some commentators claim that the fair use doctrine can be explained solely
by looking to Me economic consequences to the copyright holder; if there is
no detrimental effect the use will be permitted (Squires, 1979:216,2321. The
test for determining if the use has an adverse economic effect is prospective:
Does the use of the copyrighted work "tend to diminish or prejudice the poten-
tial sale of the plaintiffs work?" (Nimmer, 1980:13.05~. The relevant com-
parison is between the actual market for the copyright holder's work and the
market that would have existed had the use not occurred (Freid, 1979:4721.
While it is always difficult to prove that this hypothetical market exists, there
must be some evidence that the use diminished the market value of die co-
pynghted work.3~
When the use of copyrighted work furlers the constitutional purpose of
promoting "~e progress of Science and the Useful Arts," without diminishing
the market value of the copyrighted work, the courts have little trouble finding
that such a use is permitted under the fair use standard. An example of such
an instance is Rosemont Enterprises, Inc. v. Random House, inc. ,32 in which
copyrighted information was used in a biography. The court permitted the
use after finding that the use served a public purpose and that the copyright
owner did not suffer any detrimental economic effects from the use. Since it
will be difficult for the copyright holder of a data set to show a diminished
market for the data set if it is used for other scholarly purposes, it is likely Mat
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Role of Legal Policies
155
the courts would find it to be a fair use.
Even if there is some likelihood of demonstrating economic injury, the
courts have not been willing to find that scholarly use of a copyrighted work is
an infringement of the copyright protection. In Williams and Wilkins Co. v.
United States,33 a publisher brought an action for infringement against a
number of federal medical libraries that had been engaged in photocopying
and distributing various copyrighted articles from medical journals and books
to agency researchers and other libraries. This case posed a more difficult
issue, since the public benefit would seem to be offset by a more obvious
economic detriment to the publisher. But in this case, too, the Supreme
Court permitted the use, relying heavily on findings that the photocopying
practice benefited medicine and research, Hereby furthering the constitutional
purpose of the protection. Though interpretation of the Court's standard of
proof of economic injury is somewhat confused, 34 it seems clear that the hold-
er 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.
Though an individual researcher may have little personal incentive to seek
copyright protection for a data set, the publisher of the research may insist on
an exclusive copyright to all of the material in the publication, perhaps includ-
ing published portions of the data. Apparently, scholarly journals, which
rely on profits from selling reprints to subsidize publication costs, are particu-
larly eager to bargain for exclusive rights to as much of a scholar's work as
possible (Patton, 1980~. A publishing contract will specify those rights that
are transferred from the scholar to the publisher, researchers under great pres-
sure to publish may have little leverage or interest in bargaining on behalf of
others for broad access to the data.
In some circumstances the practices of publishers of scholarly journals may
discourage dissemination of research data by undercutting the fair use provi-
sions of He copyright laws. If data are published, the fair use provisions of
the copyright law will permit other interested parties to use the data; but when
a secondary researcher seeks to publish a reanalysis of a data set previously
published, the publisher of the reanalysis may choose not to rely on the fair
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156
Joe S. Cecil and Eugene Griffin
use exemption and insist that the secondary researcher obtain a copyright re-
lease from the original publisher of the data set. If the original publisher is re-
luctant to provide such a release or if the process of obtaining such a release is
too time-consuming, the reanalysis may remain unpublished. While this is
less a legal issue than one of customary practices among publishers, it may
still unnecessarily restrict the dissemination of previously published informa-
t~on.
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 main-
tained 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.
The basic policy governing access and distribution of federal records is
found in the Federal Records Act of 1950,37 part of the Administrative
Procedures Act.38 These general policies have been modified by the Freedom
of Information Act (FOIA),;39: and the Privacy Act of 1974.;40: Both stat-
utes attempt to establish standards for appropriate disclosure of federal rec-
ords. However, each was drafted to control abuses from administrative mi-
suse of records and fails to distinguish between access for administrative pur-
poses and access for research purposes. Consequently, researchers seeking
federal records must frame their requests within the regulations and standards
that do not consider the needs of research.
Not all federal records are accessible through these statutes. Both the
Freedom of Information Act and the Privacy Act extend only to federal execu-
tive "agencies," defined as:
Any executive department military department, Government corporation,
Govemment-con~olled co~porahon, or other establishment in the executive branch
of the government . . . or any independent regulatory agency.4~
This definition is important for what it omits. The Freedom of Information
Act and the Privacy Act do not extend to either the legislative or judicial
branches of government, whose agencies generally follow more restrictive
policies of disclosure. The General Accounting Office, a congressional
agency, has adopted policies that comply with the spirit of the Freedom of
Information Act,42 but this compliance remains a matter of agency discretion
rather Can a statutory right. Agencies of the judicial branch are not within
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Role of Legal Policies
157
the scope of the acts,43 and no independent statement suggests adoption of
these policies.44 Finally, the statutes do not extend to the Executive Office of
the President.45
The next section discusses the use of the Freedom of Information Act in ob-
taining access to anonymous research information maintained by federal
agencies. The subsequent section examines the role of the Privacy Act of
1974 in restricting access to identifiable agency records. Finally, the interac-
tion of the Freedom of Information Act and the Privacy Act is discussed in re-
lation to requests for identifiable information when federal agencies are un-
willing to disclose the inflation.
Request for Anonymous Records
for Research Purposes-
The Freedom of Information Act
The Freedom of Information Act (FOIA) amended the Administrative
Procedures Act, a statute that had allowed the government to withhold infor-
mation "for good cause" or when the requesting party was not "properly and
directly concerned."46 These restrictions permitted federal agencies to inter-
pret the Administrative Procedures Act in ways that severely limited access by
private parties to federal records. The FOIA, based on a citizen's "right to
know" (Comment, 1976a), was introduced to correct these restrictive pr~c-
tices by assuring "the free flow of governmental information 'necessary to an
informed electorate"' (Note, 1976a).47 The ambiguous "good cause" exemp-
tion was replaced by nine specific exemptions.48 The requirement that a re-
questing party be "properly and directly concerned" was dropped, with infor-
mation now being disclosed to "any person."49
The FOIA requires federal agencies to make available all information to the
public unless the records come under one of the nine specific exemptions.s°
Two exemptions have been used by federal agencies in attempting to restrict
disclosure of research information when that information is not already pro-
tected by some other statute.5' Identifiable records may be protected from dis-
closure under exemption 6, which applies to "personnel and medical and simi-
lar files the disclosure of which would constitute a clearly unwarranted inva-
sion of privacy."52 Other records, including anonymous data, may be pro-
tected under exemption 4, which applies to "trade secrets and commercial or
financial information obtained from a person and privileged or
confidential . "53
All exemptions to the FOIA are subject to judicial interpretation. Thus far
the courts have been very conservative in qualifying information as exempt
from disclosure, holding that the nine exemptions of the FOIA are to be nar-
rowly construed.54 Furthermore, few courts have endorsed the theory of a
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158
Joe S. Cecil and Eugene Griffin
court's equitable discretion in FOlA cases, which pemuts a court to refuse to
order disclosure of information even when that information does not qualify
as one of the nine FOLA exemptions.55 Such a narrow reading of the exemp-
tions to the FOLD generally has resulted in the release of unidentifiable rec-
ords for research purposes.
The Trade Secret Exemption
The exemption most frequently invoked to thwart disclosure of unidentifiable
research data is the trade secret exemption of the FOLD, exemption 4.56
However, this effort has met with limited success. The exemption extends
only to "trade secrets and to information which is commercial or financial, ob-
tained from a person, and privileged or confidential."57 Anonymous research
data are not customarily considered to be a business "trade secret" and Bus
the data must be protected under the second part of He exemption, which has
three requirements.
The first requirement, that the information be commercial or financial, has
been narrowly def~ned.59 For example, information has been held to be com-
mercial 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 con-
cerning fees, payment schedules, or other commercial arrangements.
Furthermore, [the] studies contain no information about secret formulas or
rare treabnent needs; their object is He review of prevalent medical ser-
vices, not esoteric expenments."6i
Efforts to characterize He interests of researchers as commercial interests
wormy of protection against disclosure have been unsuccessful. Washington
Research Project, Inc. v. Dept. of HEW62 involved a request under the FOLD
for information concerning 11 research projects being funded by the National
Institute of Mental Health (NIMH). The government agency argued that
since the research designs had been submitted win He expectation of con-
fidentiality and since researchers' ideas are their"stock-in-trade," such infor-
mation should be considered trade secrets or commercial or financial
inforrnation.63 The federal appellate court held Hat the initial grant applica-
tions, as well as any continuation, renewal, or supplemental applications
(both approved and pending), were not exempt from disclosure.64 The court
rejected the agency's stock-in-trade argument, holding Hat the reach of ex-
emption 4 "is not necessarily coextensive with the existence of competition in
any form.',65 Furthermore, the court stated ~at:
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188
Joe S. Cecil and Eugene Griffin
78. 301 F. Supp. 808 (S.D.N.Y. 1969); see also Kronman (1980).
79. In Consumers Union the court permitted release of the raw data, but refused to disclose the
scoring system used to assess the raw data. While such a precedent may make it difficult for re-
searchers to replicate findings based on raw data, it would not stand in the way of developing
competing analyses. The precedent in Orion Research Inc. v. Envirorunental Protection
Agency, 615 F.2d 551 (1st Cir 1980), extended to technical information in a proposal identifiable
to an individual bidder and is unlikely to be extended to requests for anonymous research data.
80. Long v. lR.S., 596 F.2d 362 (9th Cir. 1979).
81. Long v. IR.S., 596 F.2d 362, 366 (9th Cir. 1979).
82. See Forsham v. Harris, 445 U.S. 169 (1980); also see Note (1978), which distinguishes
Washington Research Projects from Forsham on the grounds that ~ Washington Research
Projects the government already possessed the private report while In Forsharn the data remained
with the researcher.
83. 596 F.2d 362 (9th Cir. 1979).
84. 596 F.2d 369 (9th Cir. 1979).
85. 5 U.S.C. §552a (1976). However, there are areas in which more specific statutes and re-
gulations control access to agency data. In these circumstances, the presence of a specific regula-
tory scheme may better accommodate the needs of researchers. Sasfy and Siegel (1982) exam-
ined 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 typical-
ly governed by specific statutes and regulations that apply to individual agencies and agency rec-
ords. They found that there may be "chilling effects" on research access in specific agencies if
We statutes governing records in these agencies do not contain provisions permitting access for re-
search in the statutes governing agency records. Sasfy and Siegel's work is one of the few stu-
dies of such disclosure practices, and it suggests that if research needs are anticipated by the stat-
ute, research access to agency records can proceed without difficulty.
86. An early statement of difficulties resulting from the regulation of research records by the
Privacy Act is found in "Notice of Heanags and Draft Recommendations: Research and
Statistics," 41 Fed. Reg. 55007 (proposed, December 16,1976).
87. See Privacy Protection Study Commission (1977), Mochmann and Muller (1979), and
Flaherty (1979); for early discussion of this issue, see D.T. Hulett (1975), and Martin (1974).
88. The Privacy Protection Study ComIIiission (1977, Appendix 4:11) found that as of
December 21, 1975, there were 6,723 systems of records of varying size containing 3.8 billion
individual records.
89. 44U.S.C.§3501-3S12(1976).
90. For example, federal tax returns and information have specific statutory protection against
disclosure: 26 U.S.C. §1603(a) (1976); see also discussion of Freedom of Infonnation Act,
above.
91. 5 U.S.C. §552a(a)(4) (1976).
92. 5U.S.C.§552a(a)(6)(1976).
93. 5 U.S.C. §552a(b) (1976). For an overview of the Privacy Act of 1974, see Note (1976a);
Note (1976b); Davidson (1976); Eastman (1975); and Project) (1975).
94. 5 U.S.C. §552a(b)(1) (1976).
95. I-he act requires the head of an agency or instrumentality to make a written request to the
agency maintaiIiing die record specifying the particular portion desired and the law enforcement
activity for which Me record is sought.
96. Apparently this exemption was intended to permit access for resolving problems of con-
stituents, but through a drafting error the exemption was extended to Congress as a body rawer
than individual members. Access to members of Congress for solving constituents' problems is
now considered to be a routine use of most record systems (Privacy Protection Study
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Role of Legal Policies
189
Co~runission, 1977:51~520). Allof these exemptions are founding U.S.C. §552a(b) (1976).
97. There is general agreement that this publication requirement has been an ineffective means
of notifying the public (Commission on Federal Paperwork, 1977).
98. While no court has considered such a practice, one commentator (Note, 1976a) has sug-
gested that the courts should construe the consent provision narrowly and reject an agency's claim
of prior consent, absent a clause in the original request specifically stipulating not only the antici-
pated uses, but also the potential recipients of the data.
99. 20 Congressional Record H. 12246 (December 18, 1974).
100. According to 5 U.S.C. §552a(a)(1) (1976), the term "agency" means agency as defined
by the Freedom of Information Act, ~ U.S.C. §552(e) (1976); see also discussion of the FOIA,
above.
101. See note 88. The distinction favoring records retrieved by individual identifiers seems to
presume a manual rather than a computer-based information system, but most federal records are
contained in automated record systems. Of those personal data systems reported to the Office of
Management and Budget (OMB), only 21 percent are fully or partially automated; but 81 percent
of the total number of individual records are maintained in these systems (Federal Personal Data
Systems Subject to the Privacy Act of 1974, First Annual Report to the President, Calendar Year
1975, page 2, cited in Privacy Protection Study Committee, 1977, Appendix 4:1 1). Some peo-
ple have questioned whether this "systems of record" definition is adequately broad to serve as a
triggering mechanism for the protections of the Privacy Act (Appendix 4:6). Computer technolo-
gy permits identification of an individual's record based on some combination of attributes or
characteristics, as well as by individual identifiers. Yet, without regard to the ease with which an
at~ibutional search by computer can be made, an agency may place the record system beyond the
scope of the act by retrieving the records by some means other than individual identifiers.
102. The Commission on Federal Paperwork (1977:115) strongly endorsed the use of adminis-
trative 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).
103. For commentary regarding standards of consent required by the acts, see Project
(1975:1309 1310) and Note (1976a:682).
104. 5 U.S.C. §552a(~)(1) (1976). Some people have contended that the designation of large
organizations, such as the Department of Health and Human Services (HHS), as a single agency
has permitted improper and unmonitored transfer of sensitive records to diverse units
(Commission on Federal Paperwork, 1977:67). Of course, disclosures within an agency may be
restricted by a number of other statutes. For example, the Talc Reform Act of 1976 will not pennit
disclosure of tax infonnation by the Social Security Administration to other researchers in HHS,
even though the Social Security Administration is part of HHS (Office of Federal Statistical
Policy and Standards, 1980b:97). There have been a number of legislative proposals to improve
the interagency shanag of information for research purposes. The proposals vary in their details,
but nearly all involve some "functional separation" of statistical and administrative records with
greater centralization of research and statistical responsibilities (see, e.g., Alexander, 1983).
Since these proposals are intended to improve the interagency shanug of research information—
rather than to improve directly the opportunity for persons outside the federal government to ob-
tain access to this information these proposals are not addressed in this paper.
105. The Privacy Protection Study Commission (1977, Appendix 4:67) found that the Privacy
Act has resulted in a modest overall decline in the amount of individual information agencies dis-
close to others, but Hat impact has been greatest at the margins of agency duties, such as support
for nonfederal research. Researchers and statisticians who have received identifiable information
are mostly federal agency employees or contractors, some grantees, and a relatively small number
of persons who have neither contracts nor grants. Disclosure usually consisted of a list of names
and addresses (Privacy Protection Study Commission, 1977:590).
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190
Joe S. Cecil anal Eugene Griffin
106. See the testimony of Drs. Leonard T. Kurland and Lee Robins before the Privacy
Protection Study Commission (June 11, 1976 and September 20, 1976). At least one epidemio-
logist contended that restrictions such as those contained in the Privacy Act "will spell a virtual
end to population-based studies directed toward solving public health problems" (statement by
Helen Chase of the Joint Committee on National Data Resources of the American Public Health
Association, cited in the testimony of Leonard Kurland); see also Curran (1978), and Kelsey
(1981).
107. Apparently the greatest difficulty now facing researchers who wish to link archival rec-
ords for longitudinal studies is the maze of state and federal privacy legislation that followed the
Privacy Act, which extends to specific agencies or specific kinds of records, such as medical rec-
ords (Beebe, 1980). For a review of the effects of recommendations of the Privacy Protection
Study Commission on longitudinal research, see Robins (1978).
108. Some commentators contend that the exemptions, coupled with He ineffective scheme
for enforcement, largely defeats the requirement of obtaining informed consent prior to disclosure
of personal records (Note, 1 976a:69 1 ) .
109. The Commission on Federal Paperwork (1977:111) took exception to this limitation on
disclosure and noted that if the record "is to be used solely for statistical purposes, there seems no
need for requiring that it be transferred 'in a form that is not individually identifiable.' Such res-
trictions have severely limited not only the interagency flow of information but the release to the
public of much worthwhile information, such as that contained in statistical microdata files.''
110. A review of these techniques is found in Boruch and Cecil (1979); see also Office of
Federal Statistical Policy and Standards (1978, 1980a).
111. Office of Management and Budget (1975); see also Privacy Protection Study
Commission (1977:571).
112. Examples of injures to individuals from improperly disclosed research data are difficult
to find. 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. Of course, individuals may be adversely af-
fected by interpretations of data that identify characteristics of a group of which they are a
member. See Moms et al. (1981), for an example of embarrassment to a group of teachers re-
sulting from publication of statistical characteristics of the group based on improper interpretation
of personnel test data. Similarly, the only "injury" found by the Office of Federal Statistical
Policy and Standards (1978:34) involved complaints by several persons that "release of popula-
tion census summary data by zi~code area has contributed to their increasing receipt of junk
mail." However, even if the identities of individuals are withheld, it may be possible to deduce
their identities from the public information that is released. For example, Nelson and Hedrick
(1983:34) sought to identify researchers who received grants of confidentiality under the Drug
Abuse Act of 1970. Although their FOIA request for the names of the researchers was denied
(with misplaced reliance on the Privacy Act), some information concerning the general nature of
the research project was released. While the agency's decision to withhold the names of the
grantees was being appealed (an appeal that was ultimately successful), the names of 76 percent
of the grantees were identified by matching the released information (contract numbers, telephone
numbers, etc.) with other publicly available information.
113. For a list of specific epidemiological studies that would have been "virtually impossible"
to conduct without identifiable ~nfonnation, see Gordis et al. (1977).
114. In the past some academic researchers and personnel from other agencies have been
sworn in as Census Bureau officials to conduct special analyses (Martin, 1974:265). Sasfy and
Siegel (1982) also found the use of "temporary employees" to be a common practice of criminal
justice agencies.
115. The routine uses of a record must be listed in the annual system notices and must be pu-
blished for comment in the Federal Register at least 30 days before they are included for the first
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Role of Legal Policies
191
time in the annual system notice, 5 U.S.C. §552a(e)(11) (1976).
116. A routine-use provision that permits access to identifiable records for research, which ap-
pears 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) has deter-
mined that the use of disclosure does not violate legal or policy limitations under which the record
was provided, collected, or obtained; (B) has determined that the research purpose (1) cannot be
reasonably accomplished unless the record is provided in individually identifiable fonn, and
(2) warrants the risk to the privacy of the individual that additional exposure of the record might
bong; (C) has required the recipient to (1) establish reasonable administrative, technical, and
physical safeguards to permit unauthorized use or disclosure of the record (2) remove or destroy
the information that identifies the individual at the earliest time at which removal or destruction
can be accomplished consistent with the purpose of the research project, unless the recipient has
presented adequate justification of a research or health nature for retaining such information, and
(3) make no furler use or disclosure of the record except (a) in emergency circumstances af-
fecting the health or safety of any individual (b) for use in another research project, under these
same conditions, and with the written authorization of the Department (c) for disclosure to a
properly identified person for purpose of an audit related to the research project, if information
that would enable research subjects to be identified is removed or destroyed at the earliest oppor-
tunity consistent with the purpose of the audit, or (d) when required by law; (D) has secured a
written statement attesting to the recipient's understanding of, and willingness to abide by these
provisions." For examples of such notices of routine use for research purposes, see the
Department of Health and Human Services' annual publication of the systems of records, 46 Fed.
Reg. 52693, 52697, 52700 (venous Medicare, Medicaid, and health insurance record systems),
52781 (mental health record systems), 52809, 52782, 52794, 52809, and 52867 (various clinical
research record systems) (October 27, 1981). Many other record systems permit research access
to "approved or collaborating researchers, including HHS contractors and grantees." For exam-
ples of such notices, see the Department of Health and Human Services' annual publication of the
systems of records, 46 Fed. Reg. 52796, 52797, 52798 (October 27, 1981). For even more
general notices of research as a routine use, see 41 Fed. Reg. 39719, 39720 (September 15, 1976)
(personnel records maintained by the Federal Trade Commission), and 41 Fed. Reg. 55568
(December 14, 1976) (personnel records of the Civil Service Commission). Of course, the first
version of the notice is preferable, since it permits disclosure to those who are not collaborating
researchers while establishing the necessary safeguards to protect the identified individuals.
117. Reliance on the routune-use provision of the Privacy Act to permit sharing of identifiable
research data is also risky for another reason. IT} examining agency practices, the Commission on
Federal Paperwork (1977:66 7) found that in many instances, "agency 'routine use' notices
authorize transfers for purposes which, by no stretch of the imagination, could be considered
'compatible' with the purpose for which it was collected. Typical of these is the practice of many
agencies to share medical information with law enforcement agencies" [footnotes omitted]. It
seems that such excesses may make the routine-use exemption ripe for reform. The relevant
House committee in its initial report promised vigorous oversight of agency practices in this area
(H. Rep. No. 9~1416, 93rd Cong., 2d Sess. 12, 1974). A well-tailored routine-use exception
permitting access for research to specific record systems seems proper under the Privacy Act.
However, if the rounne-use section of the Privacy Act is restricted without consideration of die
consequences to research that relies on the current exemptions, one of the few mechanisms for
perrIiitting access to identifiable records may be lost.
118. See Confluent (1976b), Note (1976b), Note (1976a), and Project (1975:1337). This in-
terpretabon is consistent with the analysis offered in Continent (1976a:135, 140), which main-
tained that: "the important point is that the FOLA is the parent act and ultimately governs access to
information The Privacy Act is relegated to the backseat when a successful disclosure request is
made under the FOLA. Thus, even if a record has been declared exempt under the Privacy Act,
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192
Joe S. Cecil and Eugene Griffin
access may still be sought under the FOIA with its nine exemptions. If the record is available
under the FOLA, access must be granted, the Privacy Act notwithstanding."
119. 5 U.S.C. §552(b)(6) (1976).
120. For a review of these cases, see Kronman (1980).
121. Dept. of Air Force v. Rose, 425 U.S. 352 (1975); U.S. Dept. of State v. The
Washington Post Co., 456 U.S . 595 ( 1982).
122. U.S. Dept. of State v. The Washington Post Co., 456 U.S.595, 596 (1982), citing the
standard used by Me court of appeals.
123. 456U.S.595(1982).
124. Prior to the Washington Post decision, many lower courts had used this stricter standard:
German v. NLRB, 450 F.2d 670 (D.C. Cur. 1971); see also Note (1975); Robles v. E.P.A., 484
F.2d 843 (4th Cir.1973); Rural Housing Alliance v. Dept. of Agriculture 498 F.2d 73,77 (D.C.
Car. (1974); Sinns v. C.I~4., 692 F.2d 562 (D.C.C. 1980).
125. 456 U.S.595,602 (1982).
126. 425U.S.352(1975).
127. 425 U.S.352,382 (1975).
128. 366 F. Supp.929 (D.D.C.1973).
129. 366 F. Supp.929, 937-38 (D.D.C.1973).
130. 477 F. Supp. 595 (D.D.C. 1979), rev'd on other grounds, 668 F.2d 537 (D.C. Car.
1981); see note 62.
131. The cow also found Mat dhe padent's privacy interest was protected by We remove of
persona identified and the doctor' privacy interest, while mom substance, sell did not make
disclosure"clearly unwarranted" 477 F. Supp.595, 604-605 (D.D.C.1979).
132. 539 F.2d 58 (lath Cu.1976).
133. 539 F.2d 58,62 (1oth C~.1976).
134. Getman v. NUMB, 450 F.2d 670 (D.C. C~.1971).
135 Disabled Dicers Associated v. Run~feLd, 428 F. Supp. 454 (D.~.C.1977).
136. Ditlow v. Schultz, 517 F.2d 166 (D.C. Cir. 1975).
137. Co~runittee on Masonic Homes v. NLRB, 556 F.2d 214 (3d Cir. 1977).
138. Wine Hobby U.S~. v. Internal Revenue Service, 502 F.2d 133 (3d Cir. 1974).
139. 477 F. Supp. 595, 605 (D.D.C. 1979), rev'd on other grounds, 668 F.2d 537 (SAC. Cir.
1981).
140. 477 F. Supp. 595, 604 605 (D.D.C. 1979).
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, in-
troduced in the House as H.R. 3409, 96th Cong., 1st Sess. (1979), and in the Senate as S. 867,
96th Cong., 1st Sess. (1979); the Privacy of Medical Information Act, S. 865, 96th Cong., 1st
Sess. (1979); and the Confidentiality of Statistical Records Act, which was never introduced but
was intended to be part of the Paperwork Reduction Act, Pub. L. No. 9~511 (1980). See also the
recommendations of the Privacy Protection Study Commission (1977).
142. This discussion assumes that an agency has not made some provision for release of infor-
mation at the time it awards funds to contractors and grantees. In fact, several agencies have es-
tablished policies to ensure that research data collected through funds provided by the agency will
become available to the public at the termination of the grant or contract. For example, the
National institute of Justice includes in its research grants a condition that requires the grantee to
furnish the Institute a documented, computer-readable copy of all data sets and programs deve-
loped in connection win the project; these data sets are mainlined by the agency and other data
archives (Garner, 1981). For an account of the frustrations faced by researchers who must share
delta with Me federal sponsors of the research, see Dawber (1980).
143. 5 U.S.C. §552(e) (1976). The Privacy Act adopts this definition of "agency," 5 U.S.C.
§552a(1) (1976); see, generally, Note (1981).
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Role of Legal Policies
193
144. 5 U.S.C. §552(a)(4)(B) (1976).
145. 445 U.S. 169 (1980). There was also an canter FOIA suit for the same information by a
pharmaceutical manufacturer: Ciba-Geigy v. Manhews, 428 F. Supp. 523 (S.D.N.Y. 1977~.
146. The Committee on the Care of the Diabetic also sued the FDA to enjoin the proposed la-
beling of the controversial drugs. The First Circuit remanded the case to the FDA for exhaustion
of administrative remedies: Bradley v. Weinberger, 483 F.2d 410 (1st Cir. 1973). The adminis-
trative law judge then found that one of the drugs, phenformin hydrochloride, was not shown to
be safe and ordered it withdrawn from the market: 44 Fed. Reg. 20967 (1979). However, this
decision was not based substantially on the raw data of the University Group study, but on refer-
ence to the study as the basis of an expert opinion.
147. Forsham v. Califano, 587 F.2d ~ 128, 1136 (D.C. Cir. 1978).
148. Forsham v. Califano, 587 F.2d 1128, 1141-1142 (D.C. Cir. 1978).
149. Forshamv.Harris,445U.S.169?171 (1980).
150. A legislative conference report indicated that Congress did not "intend to include cor-
porations that receive appropriated funds but are neither chartered by the Federal Government nor
controlled by it, such as the Corporation for Public Broadcasting": H. Conf. Rep. No. 9~1380,
93rd Cong., 2d Sess. (1974), cited by the Court in Forsharn v. Harris, 445 U.S. 169, 179 (1980).
151. The court mentioned in a footnote that a number of bills seeking to expand the FOIA to
federal grantees have been introduced in each Congress since the 92nd, but none has yet been re-
ported out of committee: Forsham v. Harris, 445 U.S. 169, 179, footnote 10 (1980).
152. Forsham v. Harris, 445 U.S. 169, 182 (1980).
153. Forsham v. Harris, 445 U.S. 169, 182-187 (1980). The court stated: "Petitioners place
great reliance on the fact that HEW has a right of access to the data, and a right if it so chooses to
obtain permanent custody of the UGDP records. Citation omitted] But in this context FOIA ap-
plies to records which have been In fact obtained, and not to records which merely could have
been obtained. [emphasis in original, footnote omitted] To construe FOIA to embrace the latter
class of documents would be to extend the reach of the Act beyond what we believe Congress
Intended." Forsham v. Harris, 445 U.S. 185-6
154. Forsham v. Harris, 445 U.S. 169, 180 (1980).
155. Forsham v. Harris, 445 U.S . 169, 188 (1980).
156. Forsham v. Harris, 445 U.S. 169, 188-190 (1980).
157. Forsham v. Hams, 445 U. S. 169, 192 (1980).
158. 445 U.S. 136 (1980).
159. Reporters Committee for Freedom of the Press v. Vance, 442 F. Supp. 383 (D.D.C.
1977)7 Add, 589 F.2d 1116 (D.C. Cir. 1978).
160. Kissinger v.ReportersCommitteeforFreedomofthe Press, 445 U.S. 136, 139(1980).
161. 445 U.S. 150 (1980).
162. 44 U.S.C. §2901 et seq. (1976).
163. 44 U.S.C. §3314 (1976).
164. Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S . 11 (1979).
165. Kissinger v. Reporters Committeefor Freedom of the Press, 445 U.S. 136, 150 (1980).
166. 445U.S. 136, 150,note9(1980).
167. 445 U.S. 136, 159 (1980).
168. 445 U.S. 136, 161 (1980).
169. 672 F.2d 1262 (7th Cir. 1982).
170. 7 U.S.C. §136d(d) (1976).
171. 672 F.2d 1262, 12701277 (7th Cir. 1982). One of the three judges did not concur with
the section on academic freedom. There is some uncertainty over the extent of this protection.
According to Michael A. Liethen, the attorney representing the University of Wisconsin re-
searchers (quoted in Broad, 1982): "Our view is that a scientist has to be free to take his inquiries
where they lead him, and that a scientist should not be forced to disclose his research data until he
OCR for page 194
194
Joe 5. Cecil and Eugene Griffin
has results he is willing to stand behind.'' However, other language in the opinions suggests that if
the data were the evidentiary basis of He administrative condemnation proceeding, the court may
well have enforced the subpoena.
172. SU.S.C.§552a(m)(1976).
173. OMB Guidelines, 40 Fed. Reg. 28947 (July 9, 1975).
174. The general counsel of HEW (now HHS) contended that the requirements of the Privacy
Act did not extend to record systems maintained by contractors, since, "[w]here the contracting
agency is interested only in obtaining the results of the research or other work performed under
the contract (generally in the form of a report) and does not require the contractor to furnish it
with individually identifiable records, the system is not one which 'but for' the contract, the agen-
cy would have established" (memorandum from Mr. William H. Taft IV, General Counsel, to
Mr. John Ottina, Assistant Secretary for Administration and Management, May 14, 1976).
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Representative terms from entire chapter:
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