Commerce and Public Citizen, disagreed with this interpretation. However, the OMB did not limit the requirement to research that is supported wholly by federal funds. Even if a project has only a relatively small amount of federal funding, all data must still be produced. Notably, OMB did not require access to data produced by privately funded research, even if that research was used by a federal agency as the basis for a legal ruling.

The revised guidelines received qualified praise from the research community, but some industry critics contended that the OMB construed the Shelby Amendment too narrowly. The U.S. Chamber of Commerce announced an intention to bring suit to challenge the OMB’s interpretation, but had not yet done so. Thus, the controversy and uncertainty surrounding the Shelby Amendment continues, although reportedly only a few Shelby requests had reached the agencies. Out of almost 20,000 total FOIA requests filed each year, at the time of the workshop the EPA and the NIH had each received only a handful of requests under the Shelby Amendment; of seven such requests to the NIH, the agency had granted four and denied three.

The issues of access and reliability. The Shelby Amendment directs our attention to the nature of the science that supports regulation and other policy making: how it is done, who does it, and how reliable it is.

Opponents of the Shelby Amendment agreed that, in principle, the more open the science, the more reliable the regulations based on it will be, and the less likely are government regulators, industry, non-profit advocacy groups, and perhaps other stakeholders to obscure the facts and distort the data to serve their interests. Thus, the announced goal of the Shelby Amendment to provide openness was appealing to both sides of the debate. Furthermore, even opponents of the amendment acknowledged that society has interests that legitimately may sometimes counter-balance researchers’ freedom to perform research and handle the data as they see fit, and that the public does deserve access to reliable facts relevant to policy making and dispute resolution. Nonetheless, some participants argued that the Shelby Amendment was too blunt and cursory to fully address an issue as complex as that of data access. One lawyer stated, “. . . many have argued, and I think persuasively, that there must be a better way to provide such access than a two-sentence amendment that simply requires that all data produced be made available under FOIA.”

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