Click for next page ( 149


The National Academies | 500 Fifth St. N.W. | Washington, D.C. 20001
Copyright © National Academy of Sciences. All rights reserved.
Terms of Use and Privacy Statement



Below are the first 10 and last 10 pages of uncorrected machine-read text (when available) of this chapter, followed by the top 30 algorithmically extracted key phrases from the chapter as a whole.
Intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text on the opening pages of each chapter. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

Do not use for reproduction, copying, pasting, or reading; exclusively for search engines.

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 148
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

OCR for page 148
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 148
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

OCR for page 148
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 148
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;

OCR for page 148
154 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

OCR for page 148
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

OCR for page 148
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

OCR for page 148
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

OCR for page 148
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:

OCR for page 148
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

OCR for page 148
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).

OCR for page 148
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

OCR for page 148
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,

OCR for page 148
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).

OCR for page 148
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 148
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). REFERENCES Alexander, L. 1983 Proposed legislation to improve statistical and research access to federal records. Pp. 27~292 in R.F. Boruch and J.S. Cecil, eds. Solutions to Ethical and Legal Issues in Social Research. New York: Academic Press. American Law Institute 1938 Restatement of Torts. Vol. 4. St. Paul: American Law Institute. Arnold, M., and Kissiloff, A. 1976 An introduction to the federal Privacy Act of 1974 and its effect on the Freedom of Infol'`lation Act. New Engl~uul Law Review 11:463096. Ball, H. 1944 The Law of Copyright and intellectual Property, cited in S. Freed, Fair use and the new act. Pp. 46~87 in G. P. Bush and R. H. Dreyfuss, eds., Technology and Copyright: Sources and Materials. Mt. Airy, Md.: Lomond Books. Beebe, G. W. 1981 Record linkage and needed improvement in existing data resources. Cancer: Branbury Report 9. Cold Spring Harbor, N.Y.: Cold Spring Harbor Laboratory. 1980 Problems of long-term recordkeeping. In Issues in Research with Human Subjects. (NIH Pub. No. FIC8~1858). Washington, D.C.: Department of Health, Education, and Welfare. Boruch, R.F., and Cecil, J.S., eds. 1983 Solutions to Ethical and Legal Problems to Social Research. New York: Academic Press. Boruch, R.F. and Cecil, J.S. 1979 Assuring the Confidentiality of Social Research Data. Philadelphia: University of Pennsylvania Press. Braunstein, Y.M., Fischer, D.M., Ordoner, J.A., and Baumol, W.J. 1979 Economics of property rights as applied to computer software and data bases. Pp. 23~246 in G. P. Bush and R. H. Dreyfuss, eds., Tech~wlogy and Copyright: Sources and Materials. Mt. Airy, Md.: Lomond Books. Braverman, B.A., and Heppler, W.R. 1981 A practical review of state open records laws. George Washington Law Review. 49:72~760. Broad, W.3. 1982 Court upholds privacy of unpublished data. Science 216(Apnl 2):3~36.

OCR for page 148
Role of Legal Policies 195 Campbell, D.T., Boruch, R.F., Schwartz, R.D., and Steinberg, S. 1975 Confidentiality-preserving modes of access to files and to interfile exchange for useful statistical analysis. Appendix A in A. Rivlin, ea., Protecting Individual Privacy in Evaluation Research. Report of the Committee on Federal Agency Evaluation Policy. Washington, D.C.: National Academy of Sciences. Comment 1976a Access to information? Exemption from disclosure under the Freedom of Information Act and the Privacy Act of 1974. Willamette Law Journal 13:135-171. 1976b The Freedom of Information Act's privacy exemption and the Privacy Act of 1974. Harvard Civil RightsCivil Liberties Law Review 11:596~31. 1977a Copyrighted compilations of public domain facts in a directory: the criterion of in- fringement. Northwestern University Law Review 71 :833-842. 1977b The nusappropnation doctrine after the Copynght Revision Act of 1976. Dickinson Law Review 81:469-493. 1981 Applying the Freedom of Information Act to tax return information, Georgetown Law Journal 69:128~1307. 1982 Copyright lawwill the denial of a copyright to an author's research impede scholar- ship? Western New England Law Review 5:103ff. Commission on Federal Paperwork 1977 Confidentiality and Privacy. Washington, D.C.: U.S. Government Printing Office. Connelly, M.Q. 1981 Secrets and smokescreens; a legal and economic analysis of government disclosures of business data. Wisconsin Law Review 1981:207-273. Cuban, W.J. 1978 The privacy protection report and epidemiological research. American Journal of Public Health 68:173-176. Davidson, J.H. 1976 The Privacy Act of 1974exceptions and exemptions. Federal Bar Journal 34:32~329. Dawber, T.R. 1980 The Framingham Study: The Epidemiology of Atherosclerotic Disease. Cambridge, Mass.: Harvard University Press. Denicola, R.C. 1981 Copyright in collections of facts: a theory for the protection of nonfiction literary works. Columbia Law Review 81:51~542. Dickson, D. 1980 Research data: private property or public good? Nature 284:292. Easterbrook, F.A. 1980 Privacy and the optimal extent of disclosure under the Freedom of Information Act. Journal of Legal St~ies 9:77~800. Easunan, H.B. 1975 Enforcing the right of privacy through the Privacy Act of 1974. Federal Bar Journal 34:33~339. Ehrlich, I. 1975 The deterrent effect of capital punishment: a question of life and death. The American Economic Review 65:397ff. Federal Judicial Center 1981 Experimentation in the Low: Report of the Federal Judicial Advisory Committee on Experimentation in the Law. Washington, D.C.: U.S. Government Printing Office.

OCR for page 148
196 Joe S. Cecil and Eugene Griffin Fennell, B.A., and Hall, W.N. 1980 Due process at sentencing: an empirical and legal analysis of the disclosure of presen- tence reports in federal courts. Harvard Law Review 93:161~97. Flaherty, D.H. 1979 Privacy and Government Data Banks: An International Perspective. London: Mansell. Fned, S. 1979 Fair use and the new act. Pp. 465~487 in G.P. Bush and R.H. Dreyfuss, eds., Technology and Copyright: Sources and Materials. Mt. Airy, Md.: Lomond Books. Garner, J. 1981 National Institute of Justice: access and secondary analysis. Pp. 4~9 in R.F. Boruch, P.M. Woranan, and D.S. Cordray, Reanalyzing Program Evaluations. San Francisco: Jossey-Bass. Gordis, L., Gold, E., and Seltser, R. 1977 Privacy protection in epidemiological and medical research: a challenge and a respons- ibility. American Journal of Epidemiology 105:163-168. Hammond, R.G. 1981 Quantum physics, econometric models and property rights to information. McGill Law Journal 27:47-72. Holden, C. 1981 Dark days for social research. Science 211 (March 27):1397. 1982 Statistics suffering under Reagan. Science 216(May 21):833. 1975 Confidentiality of statistical and research data and the Privacy Act of 1974. Statistical Reporter (June): 197-209. Hulett, M. 1975 Privacy and the Freedom of Information Act. Administrative Law Review 21:27~294. Kelsey, J.L. 1981 Privacy and confidentiality in epidemiological research involving patients. IRB: A Review of Human Subjects Research 3(February): 1~. Keplinger, M.S. 1977 Computer intellectual property claims: computer software and data base protection. Washington University Law Quarterly 1977:461067. Kronman, A.T. 1980 The privacy exemption to the Freedom of Information Act. Journal of Legal Studies 9:727~00. Lewis, A. 1980 A public right to Mow about public institutions: the First Amendment as a sword. Supreme Court Review 1980:1-25. Martin, M.E. 1974 Statistical legislation and confidentiality issues. International Statistical Review 42:26~7. McGanty, T.O., and Shapiro, S.A. 1980 The trade secret status of health and safety testing information. Harvard Law Review 93:837-888. Mochmann, E., and Muller, P.J. 1979 Data Protection: and Social Science Research. Fray: Campus Verlag. Moms, R.A., Sales, B.D., and Berman, I.J. 1981 Research and the Freedom of Information Act. American Psychologist 36:81~826. Mosteller, F. 1981 Taking science out of social science. Science 212(April 17):291.

OCR for page 148
Role of Legal Policies 197 National Commission on Research 1980 Funding Mechanisms: Balancing Objectives and Resources in University Research. Washington, D.C.: National Commission on Research. National Science Board 1981Science Indicators 1980. Washington, D.C.: National Science Foundation. Nelkin, D. 1982 Intellectual property: the control of scientific information. Science 216(May 14):704 708. Nelson, R., and Hednck, T. 1983 The statutory protection of confidential research data: synthesis and evaluation. Pp. 21~236 in R.F. Boruch and J.S. Cecil, eds., Solutions to Ethical and Legal Problems in Social Research. New York: Academic Press. Nimmer, M. 1980 Nimbler on Copyright: A Treatise on the Law of Literature, Artistic and Musical Property and the Protection of Ideas (rev. ed.). Albany, N.Y.: Matthew Bender. Norman, C. 1983a Administration relents on social science funds. Science 219(March 4)1048-1049. 1983b Congress looks fondly on science and technology. Science 221 (July 15):246. Note 1975 Administrative law Freedom of Information Act personal information exempted from disclosure Wine Hobby, USA v. IRS. Boston College Industrial and CommercialLaw Review 16:24~254. 1976a The Privacy Act of 1974: an overview and critique, 1976. Washington Law Quarterly 1976:667-718. 1976b The Privacy Act of 1974: an overview, 1976. Duke Law Journal }976:301-329. 1976c Freedom of Infonnation Act Exemption (4) research designs contained in grant applications Washington Research Project, Inc. v. OCR for page 148
198 Joe S. Cecil and Eugene Griffirz Patton, W. 1980 An Author's Guide to the Copyright Law, 31-32, 8085. Lexington, Mass.: D.C. Heath Co. Posner, R.A. 1979 Information and antitrust: reflection on the Gypsum and Georgetown Law Journal 67:1187-1203. Prewitt, K., and Sills, B. 1981 Federal funding for the social Engineers decisions. science: threats and responses. Items 35(September):33ff. Privacy Protection Study Commission 1977 Personal Privacy in an Information Society. Washington, D.C.: U.S. Government Printing Office. Project 1975 Government information and rights of citizens. Michigan Law Review 73:791-1339. Riecken, H.W., and Boruch, R.F. 1974 SocialExperimentation. New York: Academic Press. Robins, L.N. 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. Rozsa, G., and Foldi, T. 1980 International cooperation and trends in social science data transfer. UNESCO Journal of Information Sciences, Librarianship and Archive Administration 2:23~239. Sasfy, J.H., and Siegel, L. 1982 A Study of Research Access to Confidenizal Criminal Justice Agency l~ata. Washington, D.C.: The MINCE Corporation. Sprehe, J.T. 1981 A federal policy for improving data access and user services. Statistical Reporter 81 (March):32~344. Squires, J. 1979 Copyright and compilations in the computer era: old wine in new bottles. Pp. 20~234 in G.P. Bush and R.H. Dreyfilss, eds., Technology and Copyright: Sources and Materials. Mt. Airy, Md.: Lomond Books. Stevenson, R.B., Jr. 1982 Protecting business secrets under the Freedom of Information Act: managing Exemption 4. Administrative Low Review 34:297-261. Teitlebaum, L.E. 1983 A positivist approach to law and social science research. Pp. 11~8 in R. F. Boruch and J. S. Cecil, eds., Solutions to Ethical and Legal Problems to Social Research. New York: Academic Press. Thompson, G.B. 1979 Merno From Mercury: Informanon Technology is Different. Montreal: Institute for Research on Public Policy.