Minimizing Disclosure Risk in HHS Open Data Initiatives. C. The Legal Environment


A 2005 National Academy of Sciences (NAS) panel report on expanding access to research data notes that “at present, the obligation to protect individual respondents falls primarily on those who collect the data, thereby creating a disincentive for providing access to other researchers” (National Research Council 2005). As shown in the companion to this review (see Appendix D), the laws regulating the sharing of federal data provide severe penalties for agency employees in the event that disclosures occur, but these penalties rarely extend to the individuals outside the agency who are actually responsible for the disclosures. The Census Bureau addresses this asymmetry for users of its RDCs. To obtain access to a Census Bureau RDC, prospective users must obtain Special Sworn Status from the Census Bureau, which makes them subject to the same penalties for disclosure as employees. This does not extend to the public use data that the Census Bureau releases, however. The NAS panel notes that a rare exception exists for the National Center for Education Statistics (NCES) in the form of a provision in the Education Sciences Reform Act of 2002 that defines as a felony offense the use of data from the agency to “identify any individual student, teacher, administrator, or other individual” and knowingly discloses this information.11

The NAS panel addressed two recommendations to this problem:

Recommendation 7. All releases of public-use data should include a warning that the data are provided for statistical purposes only and that any attempt to identify an individual respondent is a violation of the ethical understandings under which the data are provided. Users should be required to attest to having read this warning and instructed to include it with any data they redistribute.

Recommendation 8. Access to public-use data should be restricted to those who agree to abide by the confidentiality protections governing such data, and meaningful penalties should be enforced for willful misuse of public-use data.

Achieving these objectives—particularly the second—would require new legislation authorizing agencies to impose penalties (National Research Council 2005).

11 P.L. 107-279, Education Sciences Reform Act of 2002, Section 183(d)(6).

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