Federal smoking data not exempt as confidential research

WASHINGTON, D.C.–The National Cancer Institute cannot refuse a request for information related to smoking behavior research under the Freedom of Information Act’s exemption for “confidential research information,” the U.S. Court of Appeals in Washington, D.C. ruled in early July. The court reversed a District Court ruling that denied access to the material to a private attorney working for undisclosed clients.

The appellate court ruled that the study materials were not generally protected in civil discovery, and thus, did not fall under the protection of the research exemption.

The case involved a study conducted by a research consortium for the National Cancer Institute to determine the most effective way to persuade people to quit smoking. The consortium’s project was called the Community Intervention Trial for Smoking Cessation Study, or COMMIT.

Between December 1991 and August 1992, Washington attorney Robert Burka filed several FOIA requests to obtain the COMMIT research data and the findings of the study. The government refused to release the documents, citing exemptions for confidential commercial information and confidential research information “which would not be available by law to a party … in litigation with the agency.”

In November 1992 Burka filed suit in federal District Court in Washington, D.C. seeking the release of the data tapes containing the COMMIT survey results. The court ruled that while these materials were “agency records,” they were exempt from FOIA disclosure as confidential research information. The court also cited the researchers’ interest in publishing their results in academic journals as a reason not to require the government to disclose the documents. (Burka v. Department of Health and Human Services)