In 1998, Congress passed a law commonly referred to as the Shelby Amendment, which required the Office of Management and Budget (OMB) to amend OMB Circular A-110 to allow members of the public to gain access to certain research data resulting from federally sponsored projects under the Freedom of Information Act (FOIA).
OMB Circular A-110 now allows the public, pursuant to a FOIA request, to obtain all research data related to published research findings produced as part of a project that is supported in whole or in part with federal grant funds, and that is published in a peer reviewed scientific or technical journal or cited publicly and officially by a federal agency in support of an action that has the force and effect of law (e.g., regulations or administrative orders).
Research data is defined as the recorded factual material commonly accepted in the scientific community as necessary to validate research findings. Research data does not include:
- Preliminary analyses
- Drafts of scientific papers
- Plans for future research
- Peer reviews
- Communications with colleagues
- Physical objects (e.g., laboratory samples, audio tapes, videotapes)
- Trade secrets
- Commercial information
- Materials necessary to be held confidential by a researcher until publication in a peer-reviewed journal
- Information that is protected under the law (e.g., intellectual property)
- Personnel and medical information, the disclosure of which would constitute an unwarranted invasion of personal privacy
- Information that can be used to identify a particular person in a research study
Failure to comply with a request under the OMB amendment may be viewed as a material failure to comply with the terms and conditions of the award and could lead to appropriate enforcement action by the funding agency, including possible withholding of future support or the imposition of additional restrictions on current and future awards.
If you believe that your research results may be used to develop federal regulations or administrative orders, please consider the following:
- Include in the grant terms a requirement for confidentiality of research data prior to publication
- Define in the grant a “reasonable time” to respond to FOIA requests
- Be cautious about releasing information relating to patentable inventions prior to decisions regarding patent application and before preliminary data becomes final
- Attempt to distinguish between data collected under federally funded grants and non-federally funded grants
- State in the proposal and the grant any arguments that research data are commercial in nature
- Include in the proposal and grant a provision for recovery of any costs incurred in providing data in response to FOIA requests
- Consider how to structure informed consent statements and other human subjects procedures given the potential for wider use of data collected under the award
Please notify the Department of Contracts and Grants immediately if you receive a FOIA request for research data. Please do not respond to such a request without first consulting with the Department of Contracts and Grants or the USC Office of Compliance.