Impacts of the Shelby Amendment: Letters by April 5

To the University's Research Community

On February 4, The Office of Management and Budget (OMB) proposed a change to Circular A-110, the document that governs federal research grant policy, to ensure that all "published data from federally sponsored research used for policy and rulemaking" be made available through procedures established under the Freedom of Information Act (FOIA). This proposed change was the result of an amendment to the Omnibus Supplemental Appropriations Act (HR 4328), sponsored by Senator Shelby (R-AL). Unfortunately, there were no Congressional hearings or debate on this amendment.

While we all support the open exchange of information and ideas, the proposed regulation would have a number of negative and unintended consequences for the conduct of research under federal awards. A similar amendment was offered and defeated in the House Appropriations Committee last year because of serious concerns by some members of Congress about the negative impacts to federally-funded research.

After the OMB issued its proposed rules to implement the "Shelby amendment" in February, significant concern was expressed by the federal agencies, the scientific community, and some members of Congress, that implementation of the proposed changes would be bad for science and burdensome for the science agencies and the faculty conducting federally-sponsored research. Specific issues of concern include:

  • There is no clear definition of "data," which could range from notebooks to biological material to videotaped interviews.
  • There is no clear definition of "publication," which could range from publication in a scholarly journal to a "power point" demonstration.
  • There is no adequate description of who would be required to pay for the production of data, and the agencies have no administrative structure to oversee this requirement.
  • It is not clear how patient privacy and confidentiality of medical records would be maintained.
  • The method of enforcement of the measure is unclear as is the method for protection from the misuse of data.
  • There are patent, privacy, and intellectual property concerns as well as liability issues.
  • Premature release of research findings could be misleading and create many problems in areas of public health and safety. For example, premature disclosure of data could alter the behavior of study participants, thereby significantly impacting the validity of research findings.

It is important to note that there are legitimate concerns within the scientific community, among policymakers, and in the many sectors affected by federal policy and rulemaking about the accessibility and sharing of research data. In fact, at least two federal agencies, the National Weather Service and the United States Geological Survey, have developed systems to share data and make data "public" in a reliable and responsible way. There have also been a number of discussions and policy proposals from various research agencies to promote more open sharing of data that is appropriate to the research and provides adequate protections. Such efforts tend to be field-specific.

This is not to suggest that there has been or will be a uniform federal policy to deal with these complex issues. Rather, it appears that the time may be ripe for carefully planned and coordinated consideration of the subject. Because the proposed changes to A-110 did not receive the appropriate level of Congressional consideration before the measure was passed into law, input from interested parties will be critical in order to assist the OMB as the agency determines its course of action. Written comments should be submitted to the following address by April 5, 1999. However, the OMB will continue to accept comments after that date.

    F. James Charney, Policy Analyst
    Office of Management and Budget
    Room 6025, New Executive Office Building
    Washington, D.C. 20503


--Judith Rodin, President, and Robert Barchi, Provost

Almanac, Vol. 45, No. 26, March 30, 1999