The results of scientific studies are used in making many governmental policy decisions. While the studies are often published, the data on which they are based may not be, even for federally funded research. To implement the new requirement in 1999, the Office of Management and Budget (OMB) had to reconcile potentially competing public interests. The P.L. 105-277 provision, commonly referred to as the Shelby amendment, mandated OMB to modify Circular A-110 "to require Federal agencies to ensure that all data produced under an award will be made available to the public through the procedures established under the Freedom of Information Act." They alleged that the data they sought were agency records because (1) they were records of the grantee, which received its funds from a federal agency and was subject to some supervision in the use of those funds; (2) the federal agency had authority under its grant agreement to have obtained the data had it chosen to do so; and (3) the data formed the basis of the grantee's reports which were relied upon by the agency. It expected grantees to share data consonant with the principles of scientific exchange and replication in scientific research. FOIA does not require the requester of information to give a reason for the request. The final revision was released on September 30, 1999, and published in the Federal Register on October 8, 1999. For instance, the supplementary information attached to the second proposed revision said,
[In preparing the proposed revision,] OMB has used its discretion to balance the need for public access to research data with protections of the research process. Two attempts to repeal the Shelby Amendment failed. The issues raised by the amendment and the OMB revisions to Circular A-110 can be divided into four categories:
whether the revision of Circular A-110 has made the desired information available to the public, whether the procedures established adequately protect proprietary information and the privacy of human subjects, what the benefits and costs of fulfilling the provisions are, and how the changes affect the research process. While the amendment called for access to all data produced under a federal award, the final revision to Circular A-110 limits access to selected kinds of federally funded "research data relating to published research findings produced under an award that were used by the Federal Government in developing an agency action that has the force and effect of law." This version is more restrictive than the proposed language of the first revision, which would have limited release to federally funded research data relating to published research findings that were used in developing federal policy or rules, but less restrictive than the proposed language of the second revision, which would have limited applicability to published research findings that were cited in or used by the government in developing a regulation. Thus, a grantee would not be required to submit excluded records to the funding agency. Some observers have argued that limiting public access to data from federally funded research may create imbalances in public debate about federal actions that fall under the Shelby Amendment in those cases where research funded by industries and other private-sector entities is also used. In addition, the continuing broad movement toward increasing public access to research data may eventually make the circular revision largely obsolete. One is the "transparency" argument—that the public should have access to the data, since it was funded with taxpayer dollars. Some opponents of the amendment said that FOIA is an inappropriate vehicle because its exemptions would not provide adequate protections for research data that should not be made public. It explained a process that agencies might use and said that OMB would consider revising Circular A-21 if the process did not work.
The results of scientific studies are often used in making government policy decisions. While the studies are often published, traditional federal research funding policies did not require the data on which they are based to be made available publicly. Such policies did, however, generally require researchers to share data and physical samples with other scientists after publication of the research. A rider, often called the Shelby Amendment or Data Access Act, that was attached to the Omnibus Appropriations Act for FY1999, P.L. 105-277, mandated the Office of Management and Budget (OMB) to amend Circular A-110 to require federal agencies to ensure that "all data produced under a [federally funded] award will be made available to the public through the procedures established under the Freedom of Information Act [FOIA]." The amendment authorizes user fees. OMB was required to make changes and release a revised circular; subsequently, agencies that chose to do so issued their own conforming rules. The final revision was published in the Federal Register on October 8, 1999, and has not been changed in subsequent updates to the circular.
The Shelby Amendment originated from disputes about access to research information used in federal regulations. It was a significant change from traditional practice, since, while permitted, federal agencies typically did not require grantees to submit research data and, pursuant to a 1980 Supreme Court decision, agencies did not have to give the public access under FOIA to research data they did not possess as part of agency records.
To balance the need for public access while protecting the research process, OMB's revision limits the kinds of data that will be made accessible (it excludes personal and business-related confidential data) and limits applicability to federally funded data relating to published research findings produced under a federal award and used in developing an agency action that has the force and effect of law. Opponents of the amendment said that FOIA is an inappropriate vehicle to allow wider public access, since it would harm the traditional process of scientific research; human subjects would believe that the federal government might obtain access to confidential information; researchers would have to spend additional time and money putting data into a form required by the government, thereby interfering with ongoing research; and private sector cooperation and funding for government/university/industry partnerships would be jeopardized.
Proponents of the amendment said that accountability and transparency are paramount: The public should have a right to review scientific data underlying research funded by government taxpayers. Some proponents argued that the amendment would result in significant savings. Some also believed that the OMB revision narrowed the scope of public access to research data contrary to congressional intent. Senator Shelby said the final revision, "while still narrow in scope, is a good first step.... " Legislative efforts both to repeal the provision and withhold funding for its implementation failed.
The data available for this report suggest that the provision has not been commonly invoked in FOIA requests. To the extent that is the case, it supports the assessment that neither the benefits nor the concerns raised have materialized to a significant degree. That might change if usage increased, but the continuing movement toward increased public access to the results of federally funded research that has occurred independently of the 1999 revision to Circular A-110 may make its use in FOIA requests increasingly unnecessary.