Table of Authorities Continued Hearings on the Business Record Exemption of the iii Page 10 16 21 Report of the President's Biomedical Research Panel, "Disclosure of Research Information," DHEW Publication No. (OS) 76-513 (June 30, 1976)..7, 19, 21 Wade, "Peer Review System: How to Hand out Money Fairly," 179 Science (No. 4069) 158, 159 (1973) .. 5 Watson, "The Sharing of Unpublished Information," second Frank Nelson Doubleday Lecture for 197374, at the National Museum of History and Technology, January 29, 1974. 121 Cong. Rec. H 12379 (1975) .9, 10 12 IN THE Supreme Court of the United States OCTOBER TERM, 1977 No. 77-922 CHRYSLER CORPORATION, Petitioner v. HAROLD BROWN, et al., Respondents On Writ of Certiorari to the BRIEF AMICUS CURIAE ASSOCIATION OF AMERICAN MEDICAL COLLEGES OPINIONS BELOW The opinion of the court of appeals is reprinted as Appendix A to the Petition for a Writ of Certiorari. The opinion of the district court is reported at 412 F. Supp. 171. JURISDICTION The jurisdiction of this Court rests on 28 U.S.C. § 1254 (1). CONSENT TO FILE This Amicus Curiae brief is being filed with the consent of all the parties to the proceeding. Letters of consent of all parties to the case have been filed with the Clerk of the Court. INTEREST OF AMICUS The Association of American Medical Colleges is a voluntary, nonprofit, non-governmental corporation established under the laws of the State of Illinois, having its principal place of business in the District of Columbia. Its corporate purpose is the advancement of medical education. Its institutional membership includes all one hundred twenty one accredited and operating nonprofit medical schools and medical colleges in the United States. Its membership also includes over 400 teaching hospitals in which undergraduate and graduate medical education is conducted, and 63 academic and professional societies, the members of which are actively engaged in medical education and the conduct of biomedical research. The members of the Association of American Medical Colleges (AAMC) conduct a substantial proportion of the nation's Federally supported biomedical research. Health related research and development is in large measure supported by the Federal Government; it provided nearly $2.8 billion for this purpose in 1975 out of a total national investment of more than $4.6 billion. Of this, $1.74 billion was expended in institutions of higher education. The National Institutes of Health, chief sponsor of medical research and development awarded $1.07 billion in Federal research grants and contracts to institutions of higher education of which $808 million was awarded to medical school members of the Association of American Medical Colleges and an additional $24.5 million to member hospitals.' 1 Figures taken from Tables 2 and 21, Basic Data Relating to the National Institutes of Health, DHEW Publication No. (NIH) 77-1261, 1977. Thus the institutions represented by amicus have a major role in the nation's system for conducting Federally sponsored research. Its interest in this case stems from the impact of the operation of the Freedom of Information Act (FOIA) and the Federal Advisory Committee Act (FACA)' on that system. Amicus believes that a measure of confidentiality is a necessary feature of governmental review, evaluation and handling of research grant applications. Protection from premature disclosure of an investigator's ideas is necessary to assure that the full fruits of government funded research are available to the public and are essential to the preservation of important intellectual property rights. QUESTIONS PRESENTED The questions before the Court include whether Exemption 4 of the FOIA is permissive or mandatory; whether agency regulations promulgated pursuant to 5 U.S.C. § 301 constitute "authorization by law" within the meaning of 18 U.S.C. § 1905 for disclosure of private, confidential business information; whether a submitter of information is limited to judicial review of the agency record as his only recourse in the event of an agency determination adverse to interests he asserts are protected by Exemption 4 and/or 18 U.S.C. § 1905. Reformulated in terms reflecting the perspective of amicus, the fundamental question is: May the Federal government, as possessor of valuable information as a 281 Stat. 54, 5 U.S.C. § 552 (P.L. 90-23, 90th Congress, 1st Session (1967), as amended). 386 Stat. 770 (P.L. 92-463, 92nd Congress, 2nd Session (1972), as amended). consequence of its offer to support research projects it deems to be in the public interest, at its discretion, effect a diminution of the value of the ideas to submitting investigators, foreclose the transformation of the ideas into commercially valuable intellectual property, and deprive the public of potential benefits from Federally funded research? Amicus recognizes that the specific items of information giving rise to this case are conceded by the parties to fall within the scope and coverage of Exemption 4. Accordingly, it recognizes that arguments as to the merits of including information contained in EEOC reports, affirmative action plans and the like within the scope of Exemption 4 are not pertinent to this case. Amicus will, however, direct some discussion to issues related to the scope of Exemption 4 in order to illustrate to the Court the injury to the public interest that will result from any determination that the exemption is discretionary rather than mandatory. SUMMARY OF THE ARGUMENT Creative ideas are valuable to a research investigator as his stock-in-trade and to society as a means of facilitating solutions to important national problems. To the extent that it may result in product innovations, an investigator's work is both of commercial significance and of public benefit in making available useful materials, such as, for example, life saving drugs or medical devices. Preservation of these values, however, requires that the investigator's ideas and works not be given premature public disclosure. The FOIA and the FACA affect the timing of disclosure and should be interpreted in a fashion to protect both the investigator's and the public interest. Such |