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Data Access Determination

The fundamental determinantion you have to make when utilzing the Data Access Act is whether the information you are requesting is covered by the Act. OMB narrowed its regulations to be inconsistent with the statute because they narrowed its applicaton to material that changes ones legal rights and obligations, ie, carries the force of law.

You should present your request as being covered by the Act but there are some generalities with the way your request it is written that could allow the HHS FOIA office to claim it did not understand it as a Shelby/A-110 request:

1. The ACC FOIA request letter cites the HHS FOIA regulations at 45 CFR Part 5. Upon a quick review of those regulations, it appears they were authored prior to Shelby and do not incorporate the Shelby changes to A-110. There is no reference to A-110 in the HHS regulations.

2. The agency awards would have to have been made after November 6, 1999. Presumably they were, but the request letter should state that fact.

3. The request letter should demonstrate that the requested research data were "used by the Federal Government in developing an agency action that has the force and effect of law…." This means that the agency must have "publicly and officially cit[ed] the research findings in support of an agency action that has the force and effect of law." 64 Fed. Reg. 54930 and Circular A-110 para. __.36(c) and (d).

4. You should state in your request that it filed pursuant to the Data Access Act and cite the aformentioned reference.

With regard to the question of whether HHS has responded to other requests such as this pursuant to the Shelby Amendment, we would presumably have to file a FOIA request to find that out.

The OMB interpretation of Shelby with regard to point 3 is very unjustified.

If you are going to pursue this matter we could post your work on the Interactive Public Docket we have devoted to OIRA because it is read by OMB Staff, please see https://www.thecre.com/oira/.

In the event your request does not meet the narrow requirements of the Data Access Act as interpretted by OMB, actions would have to be taken to expand the OMB regulations to be consistent with the Act.