The Freedom of Information Act has applied to records in federal agencies' control since the 1966 adoption of FOIA but, under the 1980 Supreme Court decision in Forsham v Harris, has not applied to records held outside of the agency by grant recipients doing federally-funded research.

Late in 1998, as part of a large appropriations bill, Congress passed a two-sentence requirement for the Office of Management & Budget to revise its Circular A-110 on federal grants, so that hospitals, universities and other nonprofit entities would be subject to future FOIA access, except for FOIA-exempt records, for Aall data produced under an award. The simple directive, named the AShelby Amendment for sponsor, Senator Richard Shelby of Alabama, was accompanied by a direction that additional costs of the expanded access provision would be borne by the persons requesting access to the data. No change was made to the FOIA's exemptions or procedures. The OMB's proposed revision appeared in the Federal Register on Feb. 4, 1999, and OMB received more than 9,000 comments, of which more than half favored broad application of FOIA to research data. A revised proposal was published August 11, 1999, with plans to complete the revision by the end of the fiscal year on September 30.

House hearings on the issue were held on July 15, and a meeting of the Senate Science & Technology Caucus featured a debate on July 27. Critics called the Shelby Amendment unreasonable and asserted that it would inhibit scientific inquiry and dissuade volunteers from participating in research. They sought a rider to repeal the 1998 Amendment; the rider failed in the House Appropriations Committee on a divided vote. A direct repeal bill, H.R. 88 was sponsored by the late Rep. George Brown. Supporters of the Shelby Amendment urged that it be allowed to become as effective as FOIA has been for accountability and observed that the FOIA exemptions would still apply. They further asserted that this set of taxpayer-funded work is properly subject to public scrutiny of the contents of the research.

As this article went to press, the potential for litigation from one side or the other appeared to be significant, but Congress had not acted to repeal the 1998 amendment. It appears likely that OMB would place some form of FOIA access into effect for grantees' research data. Section members with an interest in FOIA issues should continue to track Shelby Amendment developments.

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