Could research data fall under the Freedom of Information Act?

Question

When I refer to the Freedom of Information Act (FOIA) I mean either the federal act or similarly implemented state laws. Clearly the validity of such requests would have to be limited to institutions which have received government aid in at least some way. In addition, there is the argument that such data could be considered a trade secret, as is the case in Mississippi.

However, the case in Mississippi is meant to protect findings themselves rather than raw data. In addition, there are many cases in which the data itself could be considered to have been public information to begin with, as is the case in archaeological excavation.

Some institutions already have an open data policy, such as PLOS, which requires all data relevant to a paper to be published:

PLOS strongly believes that, to best foster scientific progress, the underlying data from an article should be made freely available for researchers to use, wherever this is legal and ethical. Data availability allows validation, replication, reanalysis, new analysis, reinterpretation, or inclusion into meta-analyses, facilitates reproducibility of research and extends the value of the investment made in funding scientific research. Thus, PLOS believes that ensuring access to the underlying data should be an intrinsic part of the scientific publishing process. Furthermore, by getting data into the right place on publication we can reduce the burden on authors in unearthing old data, retaining old hard drives and answering email requests.

This is, at least in part, a purpose of FOIA: verification of claims. So based on the letter of the law, would such a FOIA request be considered valid and assuming the institution simply rejects the request, would there be legal recourse?

Answer 1

The original Freedom of Information Act applied only to information in the possession of government agencies. That means that the release of reports and proposals submitted to the funding agency could be compelled under the FOIA. But it did not apply to data from the research, if in possession of the PI and not the funding agency (as is typically the case).

A later amendment (Shelby amendment) expanded the FOIA to apply to some federally funded research data in the possession of a non-profit institution, as follows:

• The release of "research data relating to published research findings produced under an award that were used by the Federal Government in developing an agency action that has the force and effect of law" may be compelled under the FOIA, if
• the data is not "trade secrets, commercial information, materials necessary to be held confidential by a researcher until they are published, or similar information which is protected under law."

Also, the requestor may be charged a "reasonable fee equaling the full incremental cost of the agency, the recipient, and applicable subrecipients."

So the general answer to your question is that in most cases, the FOIA does not compel the release of data from federally funded research.

Regarding state law, it seems from the appendix to this report mentioned in another answer that at least one state does have an open records statute that may apply to research data produced by employees of the state university system:

"Measuring Reproducibility in Computer Systems Research." Christian Collberg, Todd Proebsting, Gina Moraila, Akash Shankaran, Zuoming Shi, Alex M Warren. March 21, 2014.

Answer 2

Yes, it could. "Could" is a very broad word. Keep in mind that FOIA applies only to executive branch government agencies and has nine exemptions. Additional laws apply in particular states and in other countries. As other commenters pointed out, this is not legal advice and you should consult a lawyer.

http://www.foia.gov/ also see Wikipedia.

Answer 3

First: If you are seriously concerned about this, you should consult with a lawyer. Period. Only lawyers can give legal advice, and you shouldn't call others unhelpful if they point this out. By the way, academic institutes and universities can really kick your balls if they think you hurt their trade secrets even if you done it with good will. There are examples about people who got jailtime esp if it was something patent related. So err on the safe side if you are not sure what data you should share.

Second: ".. the underlying data from an article should be made freely available for researchers to use, wherever this is legal and ethical. Data availability allows validation, replication, reanalysis, new analysis, reinterpretation, or inclusion into meta-analyses, facilitates reproducibility of research and extends the value of the investment made in funding scientific research."

or from PLOS:

"PLOS defines the “minimal dataset” to consist of the dataset used to reach the conclusions drawn in the manuscript with related metadata and methods, and any additional data required to replicate the reported study findings in their entirety."

It sounds nice and fluffy, but technically speaking all this hold for present publications, too. Off course, no one publishes every single experimental results, but any data that needed for replication, validation etc should be part of your publication. Results without reproducibility are useless in science, even if reality is a little bitter. I guess these policies are coming to push people a little more in the direction.