Background and Methods
This analysis, prepared for the exploratory committee, focused on federal government-funded research for several reasons. The first is the greater availability of data to analyze as a result of public access to RFPs, data-use documents, and other legal documents governing eligibility for funding and access to data. The second was the greater presence of reported problems among AcademyHealth members.

The third reason for this focus is the presence of special legal considerations where government funding of research is concerned, particularly where the recipient of research funding is an academic institution, as opposed to a “work-for-hire” firm undertaking special tasks for the government. Under broad principles of contract law, a contract between two parties is binding if they agree to its terms. At the same time, and as discussed below, American jurisprudence traditionally has granted universities special legal status as a public domain for academic freedom under the First Amendment of the United States Constitution.1 In other words, the first amendment restricts the ability of government to curtail free speech where the speaker is a university, even where the funding for the “speech” is from the government and would otherwise represent “work for hire” tasks. Because of the special legal significance assigned to government contracts with universities under the First Amendment, we focused our efforts on these contracts.2

Although this special significance also attaches to contracts for state governments,3 it would be unmanageable to tackle state conduct in all 50 states. While anecdotal evidence suggests similar problems may occur under some state contracts, focus here is federal. The research entities that are the basis of our focus are academic institutions and private contractors to the extent that they sub-contract with academic institutions.

Because of the legal nature of the documents to be examined and the landscape against which the question of content restraint arises, this effort was undertaken by two lawyers experienced in research, supported by a law student. These staff members supplemented legal research techniques with unstructured, open-ended interviews with a range of respondents.

The legal document review began by examining requests for proposals (“RFPs”) publicly available through government Web sites. Staff conducted legal research into federal regulations and standards that govern the government contracting processes, known as federal acquisition regulations (FAR) as well as critical federal judicial decisions relevant to constraints on speech in academic settings.

Staff also conducted extensive interviews with contracting officers at a range of institutions represented by AcademyHealth members. These university officials represent a dozen institutions selected because of the presence of AcademyHealth members, as well as extensive federal government research experience. The appointed AcademyHealth committee supplemented this research with a roundtable discussion at the 2006 AcademyHealth Annual Research Meeting (ARM) in order to obtain input from members on these issues. (See Appendix A for a detailed account of this session). This roundtable led to an expansion of original efforts to include the presence of content restrictions in data use agreements, and was followed by additional interviews with government contracting officers and private sector consulting organizations.

All interviews were conducted in accordance with IRB requirements of the George Washington University. Being cognizant of ongoing relationships between funders and universities, we assured the university contracting officers that their names and the institutions would remain confidential. The government contracting officer names and agencies remain confidential as well. We conducted one confidential interview with a researcher from a non-profit research center.