January 2003

Grant Results

SUMMARY

In 2000, the Washington law firm of Cadwalader, Wickersham & Taft defined the implications of the Shelby Amendment, which requires that all data produced by federally supported scientists at nonprofit institutions be publicly available through the Freedom of Information Act.

The Shelby Amendment (named for its primary sponsor Sen. Richard Shelby, (R-Ala.) passed the U.S. Congress in 1998 at the urging of some business organizations that sought a way to challenge scientific studies underpinning costly regulations and lawsuits.

Scientists, however, expressed concern that the Shelby Amendment might be used to harass and intimidate them as they undertook research with potentially expensive implications for business — such as the health effects of smoking.

Key Results

  • The project team concluded that:
    • Key federal agencies, especially the Department of Health and Human Services and the National Institutes of Health, remain unprepared for aggressive data requests under the Shelby Amendment.
    • The agencies hope to be able to handle Shelby requests with existing Freedom of Information Act staff within existing budgets.
    • Industry will vigorously pursue both an expanded reading of Shelby and data production under the law when controversial scientific findings are involved.
  • The project team prepared an article entitled "Scientific Advocacy and Scientific Due Process," which appeared in the journal Issues in Science and Technology. (See the Bibliography for details.) The article outlined the history, background and implications of the Shelby Amendment for the scientific community. It also:
    • Suggested an alternative approach to the Shelby Amendment.
    • Proposed the creation of a nonprofit group to defend the interests of scientific researchers.

Funding
The Robert Wood Johnson Foundation (RWJF) supported the effort with a grant of $50,000 between February 2000 and September 2000.

 See Grant Detail & Contact Information
 Back to the Table of Contents


THE PROJECT

The Washington law firm of Cadwalader, Wickersham & Taft defined the implications of the Shelby Amendment, which requires that all data produced by federally supported scientists at nonprofit institutions be publicly available through the Freedom of Information Act. The Robert Wood Johnson Foundation (RWJF) supported the effort with a grant of $50,000.

The Shelby Amendment (named for its primary sponsor Sen. Richard Shelby, R-Ala.) passed the U.S. Congress in 1998 at the urging of some business organizations that sought a way to challenge scientific studies underpinning costly regulations and lawsuits. Scientists, however, expressed concern that the Shelby Amendment might be used to harass and intimidate them as they undertook research with potentially expensive implications for business — such as the health effects of smoking.

In late 1999, the federal Office of Management and Budget (OMB) issued final rules implementing this law. The U.S. Chamber of Commerce and other industry organizations argued that these rules too narrowly defined the circumstances under which the public could request data.

 Back to the Table of Contents


RESULTS

Under this grant, the law firm undertook a series of activities to define the implications of the Shelby Amendment. Among them, project staff:

  • Established working relationships with the federal officials charged with implementing the Shelby Amendment, prepared a critique of federal progress in preparing for Shelby data production and tracked pending litigation that the U.S. Chamber of Commerce said it planned to bring challenging the OMB rules. On the basis of this work, the project team concluded that:
    • Key federal agencies, especially the Department of Health and Human Services and the National Institutes of Health, remain unprepared for aggressive data requests under the Shelby Amendment.
    • The agencies hope to be able to handle Shelby requests with existing Freedom of Information Act staff within existing budgets.
    • Industry will vigorously pursue both an expanded reading of Shelby and data production under the law when controversial scientific findings are involved.
  • The project team prepared an article entitled "Scientific Advocacy and Scientific Due Process," which appeared in the journal Issues in Science and Technology. (See the Bibliography for details.) The article outlined the history, background and implications of the Shelby Amendment for the scientific community. It also:
    • Suggested an alternative approach to the Shelby Amendment. For controversial research that underpins costly regulations, an impartial outside group could undertake an independent reanalysis of the data in question. For example, a Cambridge, Mass., nonprofit group called the Health Effects Institute conducted such a reanalysis and confirmed the findings of Harvard researchers who found that people living in areas with high air pollution have reduced life expectancies. Those findings inspired the Environmental Protection Agency to tighten air quality standards for particulate matter, raising costs for utilities and others. Using an independent body such as the Health Effects Institute avoids the potential for bias in interpretation of data. In addition, only controversial research that is the basis for costly regulations would justify the time and expense involved in reanalysis, thwarting those who would exploit the nuisance value of broad Freedom of Information Act requests for "all data" without regard to need. The article discussed the conditions under which either the party requesting the reanalysis or a federal agency would pay for it.
    • Proposed the creation of a nonprofit group to defend the interests of scientific researchers. Such an organization would function as a "science defense fund." It might undertake direct representation, issue friend-of-the-court briefs, or offer legal commentary when scientists are personally attacked or when measures are proposed that will significantly impair the conduct of scientific research.

In addition, the project team met with President Clinton's science adviser and the National Academy of Science's (NAS) Panel on Science, Technology and Law to encourage them to examine the Shelby Amendment and other related issues. The NAS, which advises Congress on science and health issues, followed up by creating a subcommittee to recommend to the full panel a course of action on the Shelby Amendment. The project also worked with the Health Effects Institute to explore using its experience with data reanalysis as an alternative to the Shelby Amendment.

 Back to the Table of Contents


AFTER THE GRANT

Since the close of this project, the federal government has received a relatively small number of requests for data under the Shelby Amendment, according to NAS — leaving few scientists aware of the law's existence. NAS held a public workshop on the issue in March 2001. Entitled, "Seeking Access to Research Data in the 21st Century: An Ongoing Dialogue Among Interested Parties," the workshop drew about 200 people representing universities, the federal government, law firms and law schools, associations and industry.

 Back to the Table of Contents


GRANT DETAILS & CONTACT INFORMATION

Project

Activities Surrounding the Shelby Amendment and Science Advocacy

Grantee

Cadwalader, Wickersham & Taft (Washington,  DC)

  • Amount: $ 50,000
    Dates: February 2000 to September 2000
    ID#:  038967

Contact

Frederick R. Anderson, J.D.
(202) 862-2406
Fred.Anderson@cwt.com

 Back to the Table of Contents


BIBLIOGRAPHY

(Current as of date of this report; as provided by grantee organization; not verified by RWJF; items not available from RWJF.)

Articles

Anderson F. "Science Advocacy and Scientific Due Process." Issues in Science and Technology, 16(Summer): 71–76, 2000.

Reports

Anderson F, Edens G and Sargeant T. Science Advocacy and Scientific Due Process: Sourcebook of Materials. Washington: Cadwalader, Wickersham & Taft, 2000.

 Back to the Table of Contents


Report prepared by: Susan G. Parker
Reviewed by: Richard Camer
Reviewed by: Robert Crum
Program Officer: Warren J. Wood

Most Requested