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Wednesday, March 6, 2013

Public Access to Data from Federally Funded Research: Provisions in OMB Circular A-110

Eric A. Fischer
Senior Specialist in Science and Technology

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.

Date of Report: March 1, 2013
Number of Pages: 33
Order Number: R42983
Price: $29.95

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