Federally funded research is research paid for, in whole or in part, by taxpayer dollars collected by the federal government. An example is Richard Lenski's study in which he claimed, without making his data available to the public, that evolution by E. coli bacteria occurred in his laboratory study.^[1] The Lenski research "has been supported in part by grants from the National Science Foundation (currently DEB-0515729) and the Defense Advanced Research Projects Agency Fun Bio Program (HR0011-05-1-0057)."^[2]

Public Access to Publicly Funded Data[edit]

Information Quality Act[edit]

The Information Quality Act (IQA), also known as the Data Quality Act, provides that:^[3]

The Director of the Office of Management and Budget shall, by not later than September 30, 2001, and with public and Federal agency involvement, issue guidelines under sections 3504(d)(1) and 3516 [this section] of title 44, United States Code, that provide policy and procedural guidance to Federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal agencies in fulfillment of the purposes and provisions of chapter 35 of title 44, United States Code [this chapter], commonly referred to as the Paperwork Reduction Act.

In furtherance of the goals of the statute, the IQA requires federal agencies to "establish administrative mechanisms allowing affected persons to seek and obtain correction of information maintained and disseminated by the agency that does not comply with the guidelines [of quality, objectivity, utility, and integrity of information]."^[4]

Many federal agencies have implemented the IQA by establishing administrative petition and review mechanisms by which parties can address their grievances. For example, the HHS has established for both an initial petition and an administrative appeal:^[5]

Based on a review of the information provided, the agency will determine whether a correction is warranted and if, so what action to take. The agency will respond to the requestor by letter or e-mail. The agency's response will explain the findings of the review and the actions that the agency will take, if any. The response will consider the nature and timeliness of the information involved and such factors as the significance of the correction on the use of the information, the magnitude of the correction and the resource requirements for the correction. The response will describe how the complainant may request reconsideration. The agency will respond to all requests for correction within 60 calendar days of receipt. If the request requires more than 60 calendar days to resolve, the agency will inform the complainant that more time is required and indicate the reason why and an estimated decision date ....

If the individual submitting the complaint does not agree with the agency's decision (including the corrective action), the complainant may send a written hard copy or electronic request for reconsideration within 30 days of receipt of the agency's decision. The appeal shall state the reasons why the agency response is insufficient or inadequate. Complainants shall attach a copy of their original request and the agency response to it, clearly mark the appeal with the words, "Information Quality Appeal," and send the appeal to the specific agency appeals address.

The agency official who handles the original complaint will not have responsibility for resolving the appeal. The agency will respond to all requests for appeals within 60 calendar days of receipt. If the request requires more than 60 calendar days to resolve, the agency will inform the complainant that more time is required and indicate the reason why and an estimated decision date.

Most federal litigation seeking disclosure of federally funded research invokes this the IQA.^[6]

Circular A-110[edit]

In 1999, Senator Richard Shelby introduced legislation known as the Shelby Amendment that was designed to require that some researchers make available data paid for by federal taxpayers:^[7]

As part of the Fiscal Year (FY) 1999 Omnibus Appropriations Act (P.L. 105-277), Congress included a provision introduced by Senator Richard Shelby (R-AL) that for the first time allows the public to obtain federally funded research data collected through grants and agreements with universities and other nonprofit organizations.

This initiative was widely applauded by CATO^[8] and other groups.

The entire text of the Shelby Amendment is as follows:^[9]

Provided further, That the Director of OMB amends Section -.36 of OMB Circular A-110 to require Federal awarding 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: Provided further, That if the agency obtaining the data does so solely at the request of a private party, the agency may authorize a reasonable user fee equaling the incremental cost of obtaining data.

On February 4, 1999, the OMB issued a proposed revision to Circular A-110 in implementing the foregoing law. It was to allow a FOIA request on a federal awarding agency to obtain and provide federally funded published research data. However, this provision would only apply to data underlying published studies that the federal government used in developing a policy or rule.

As further amended in October 1999,^[10] which became effective April 17, 2000,^[11] Circular A-110 states that:^[12]

In addition, in response to a Freedom of Information Act (FOIA) request for 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, the Federal awarding agency shall request, and the recipient shall provide, within a reasonable time, the research data so that they can be made available to the public through the procedures established under the FOIA.

The circular is applicable only to data first produced under new or competing continuing grants awarded after April 17, 2000, the regulation's effective date.^[13]

For a variety of reasons that focused primarily on procedure and standing, a lawsuit invoking Circular A-110 to obtain underlying data from a federally funded research was unsuccessful in Salt Inst. v. Thompson, 345 F. Supp. 2d 589 (E.D. Va. 2004), aff'd, 440 F.3d 156 (4th Cir. 2006).

University Policies[edit]

Some universities may have policies requiring researchers to make their data available to others. (add more)

State Law[edit]

State laws may require researchers to make their underlying data available to others, particularly if the research was performed at a state university. (add more)

Agency or Grantor Conditions[edit]

Some federal agencies or grants may require that recipients make their underlying data available to others. (add more)

Journal Policies[edit]

PNAS has adopted "UPSIDE", which is the Uniform Principle for Sharing Integral Data and Materials Expeditiously. That standard establishes that the "author's obligation is ... to release data and materials to enable others to verify or replicate published findings," and that the "upside" is that this "keeps science honest." Moreover, PNAS expressly rejects "a requirement that the material be used for research purposes."^[14] The UPSIDE principles further state that "once something is published it should be freely shared by everyone."^[15]

Contractual Obligations[edit]

A contractual argument for access to underlying data could be based on representations made by journals that present claims to the public. For example, the JNAS asserts that authors in its published articles will make data available to other researchers under certain conditions.

References[edit]

1. ↑ Conservapedia:Lenski dialog
2. ↑ PNAS, Vol. 105, No. 23, page 7905 (June 10, 2008).
3. ↑ Pub. L. No. 106-554, § 1(a)(3) [Title V, § 515](Dec. 21, 2000) (published at 44 U.S.C. 3516 note).
4. ↑ Ibid.
5. ↑ See United States Department of Health and Human Services, HHS Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and [*3] Integrity of Information Disseminated to the Public, http://aspe.hhs.gov/infoquality/Guidelines/part1.shtml.
6. ↑ See, e.g., Americans for Safe Access v. United States HHS, 2007 U.S. Dist. LEXIS 55597 (N.D. Cal. July 24, 2007).
7. ↑ https://www.heritage.org/research/budget/EM604.cfm
8. ↑ http://www.cato.org/pubs/pas/pa-366es.html
9. ↑ FY 1999 Omnibus Appropriations Act (144 CONG. REC. H11178 (daily ed. Oct. 19, 1998)).
10. ↑ 64 Fed. Reg. 54926 (October 8, 1999).
11. ↑ See Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations, 65 Fed. Reg. 14406 (March 16, 2000).
12. ↑ https://www.whitehouse.gov/omb/circulars/a110/a110.html
13. ↑ See 64 Fed. Reg. 54926.
14. ↑ http://www.pnas.org/content/101/11/3721.full
15. ↑ http://www.pnas.org/content/101/11/3721.full (emphasis added).