Podcast – FOIA

Welcome to another addition of all about grants. My name is Megan Columbus I am with the NIH Office of Extramural Research. As many of you may know the NIH Office of Extramural Research is responsible for the framework, that’s the infrastructure for NIH grant programs, including grant policies and compliance, grant systems, and data and analyses on who and what NIH funds. Today’s podcast is about the Freedom of Information Act (also known as FOIA) as it pertains to the information maintained by the Office of Extramural Research. I’d like to welcome Dr. Maggie Snyder, OER’s FOIA coordinator, and Pat Brown, who has been with us before who’s the Director of the Office of Laboratory Animal Welfare.

Megan:         Maggie, let’s start, what is the Freedom of Information Act?

Maggie: The Freedom of Information Act, often referred to as FOIA, is a legislatively mandated tool that allows the public to find out about the activities of the federal government by giving them rights to obtaining copies of  records in the government’s possession.

Megan:         Who is subject to FOIA?

Maggie: All Federal Agencies are subject to FOIA; however, the Congress in passing this legislation exempted themselves, the personal staff of the President, and the Federal Courts.

Megan: Does FOIA apply to state governments as well?

Maggie: The federal FOIA has no bearing on State agencies or on Private entities but all or nearly all of the states have a state equivalent to FOIA, which is sometimes called Freedom of Information or the state Sunshine Act or State Open Records Law. Today we will only be talking about the federal Freedom of Information Act as it applies to NIH and more specifically the Office of Extramural Research.

Megan:         Who may file a FOIA?

Maggie:  We are required to respond to any person, including non-citizens and non-residents, within the US who will submit a written request that reasonably describes the records they seek.

Megan: When you say “reasonably describes”, what do you mean by that ?

Maggie:  Let me answer that by using two examples.  The first is not a reasonably described request.  For example someone saying “Give me everything you have on cancer.”  We have grant information, we have correspondence and data about grants that conduct research on various treatments for cancer and our list of possible records would continue on and on.  However if someone says I would like to have a list of all institutions or organizations currently doing breast cancer research in South Dakota, the titles of the grants and the names and addresses of the Principal Investigators of those grants,  we have a reasonably described request. 

Megan: okay ,So it must be a very specific request?

Maggie:  Yes

Q. I noticed that you said that anyone may submit a request for a record.  What constitutes a record then ?

Maggie:  NIH records include documents such as correspondence or grant applications, documentary materials such as photographs and videos, data, and information in electronic format, such as e-mail.  Everything we have is subject to FOIA but not everything is releasable even though it’s considered a record. 

Megan: When you say that everything is reasonable what do you mean?

Maggie:  When FOIA was enacted it was noted by the Congress and I quote  “A democracy works best when the people have all the information that the security of the nation permits.”  end of quote.  But it goes on to say “At the same time the welfare of the Nation or the rights of individuals may require that some documents not be made available.”

Congress provided 9 exemptions that protect certain records from disclosure.  Four exemptions are used most commonly for OER information. Are:

Exemption 4: trade secrets and commercial or financial information

There we withhold trade secrets and commercial or financial information that is obtained from a person and if it is privileged or confidential.

Megan: I am sure our applicants will be relieved to hear that

Maggie:  If a grantee is placed in a position where NIH is asking them to review the grant application in response to a FOIA requests they need to consider the fact that if the information is already public, such as in a recent publication , it shouldn’t be protected under FOIA.

Megan: Great. Good to know

Maggie:  Exemption 5: inter-agency or intra-agency memoranda or that incorporates certain privileges such as attorney-client or deliberative process, this includes some aspects of the review of grant applications, such as the Priority Score.

A good example of this exemption is when NIH or for that matter any agency is developing a new policy. Emails are flying between multiple offices as the idea is vetted and the statement of the proposed new policy is word-smithed.  It is recognized that the reviewers need to be able to be candid and not have their opinions or comments made public.

Exemption 6: Is one that allows protection of information that would constitute and invasion of personal privacy if disclosed, for example personnel actions

Exemption 7: protects certain information in law enforcement files that are currently under investigation, that is, where the investigation is open case.

Megan: So this might be cases where there is criminal action related to a grant that has been referred to the department of justice for example?  

Maggie:  Yes. It applies to other compliance cases too.  We’ll be hearing from Pat about how it applies to the Office of Laboratory Animal Welfare ‘s non-compliance records when there are open cases.

Megan:         I know new applicants are often interested in getting a copy of a successful grant application to inform their own grant-writing activities. Can they get this information through FOIA? Is that possible and is it the best way to go?

Maggie:  NIH does have a couple sample grant applications available on-line. Just do a search for NIH sample grant applications and you will find them. If you want a copy of a grant that might be more in line with your research, then I’d recommend that you go to NIH’s RePORTER tool and search for a funded grant that is similar to your own scientific interest. Following this you have two choices.  The simplest approach is to ask the PI of the funded grant whether they would share a copy of their successful grant application.  Megan you have a whole pod cast on grant writing don’t you?

Megan: We have a number of Podcasts related to grant writing.  Just do a search for NIH All About Grants podcast and you should find it.

Maggie:  The second choice for obtaining a copy of the grant application is to make a FOIA request to the FOIA Coordinator for the Institute/Center funding the grant.  Included should be your name and mailing address, including institutional affiliation and what is specifically being requested.  For grants I’d recommend providing a grant number.  It doesn’t hurt to add the Title and PI name as well.

Before we can release any application, we need to redact anything that might be protected under the law. Such as trade secrets or confidential information like we mentioned before. Your letter or email will be sent to the principal investigator (PI) as part of the NIH’s efforts to determine if there is any intellectual property or trade secrets that should be protected within the materials request. So your request will not be anonymous. And the version of the application that we provide you with may have large chunks blacked out. So while you are welcome to ask for an application under FOIA, we recommend approaching the PI directly.

Megan:         What if I want to see what an unsuccessful grant application looks like – Can I get a copy of an unsuccessful grant?

Maggie:  Oh No!  We consider the unfunded application to be the intellectual property of the PI’s institution.  As you and most of our listeners know too well, NIH is not able to support all of the grant applications that are sent to us – though many unfunded applications are meritorious.  It is very possible the application may be revised and submitted again to NIH or supported by another funder.

Megan:  NIH supports transparency in lots of ways.  We fully support and comply with the freedom of information act.  We also have a long history of being very transparent about our funding. RePORT (at report.nih.gov) is an amazing tool developed by NIH that allows the public insight into who and what NIH funds. Note that we only provide information on funded grants, there. No information is provided to the public on unfunded applications either through FOIA or RePORT.  But we do provide summary information on unfunded applications in many of our reports and analyses which you can also find on RePORT.  

Megan: Maggie, I believe you have a process whereby you identify reports or information frequently requested through FOIA and then you proactively make that information public is that correct? Will the wrong version

Maggie:  Yes.  We post frequently requested reports in the NIH FOIA Library, which can be found at the NIH FOIA website

Megan: So Pat I have not forgotten about you.  There are some instances when institutions who correspond with the federal government should think about what they include in that documentation. One area where we get frequent FOAI requests is for reports of non-compliance made to the Office of Laboratory Animal Welfare. I would like to ask you as Director of Office of Laboratory animal welfare, also known as OLAW, if she has any advice for our institutions regarding correspondence with OLAW?

Pat:  For those of you who might be responsible for submitting non-compliance reports to OLAW, I’d like to mention that while OLAW is a Federal office committed to FOIA’s mandatory disclosure procedures, there have been situations where unnecessary information was included in a report of noncompliance to OLAW and this information was misused for targeted harassment of the lab animal community, scientists, and research facilities.

Megan: And that’s something NIH never condones

Pat:  absolutely

In order to maintain proper reporting while minimizing the risk of possible security breaches, I would like to highlight the mandatory pieces of information required to be included in a final noncompliance report to OLAW:

·      First, The name of the institution and its Assurance number with OLAW

·      Next, the reporting requirement of the PHS Policy under which the incident qualifies Is it a serious or continuing noncompliance with the PHS Policy itself, a serious deviation from the Guide for the Care and Use of Laboratory Animals, or a suspension of an activity by the Institutional Animal Care and Use Committee. Whichever the incident qualifies for should be included. Third, if a preliminary report was made, the final report should note when, by whom, and to whom a preliminary report was made.

·      Next is an explanation of the incident itself. The report should explain in detail what happened, when and where, the species of animals involved, and the category of the individuals involved, but not their names. For example, the report should state that a technician forgot to check a water bottle, or the Principal Investigator failed to provide instructions on the schedule for post-operative analgesics to a new research assistant.

Megan: So I think the key thing you just said there is we really want to know what happened but we really don’t want to know the specifics about the name of the person that’s involved. Because that becomes a security risk

Pat: That’s right. Megan

Pat: Next in the report are the corrective and preventative actions taken to address the situation. The report should include all the short or long-term corrective plans along with the implementation schedule. The report should indicate whether the IACUC reviewed and accepted the corrective actions submitted by the responsible party and any ongoing actions taken by the IACUC such as enhanced oversight.

Next, you should make sure the relevant grant or contract number for NIH, other Public Health Service or NSF supported activities should be provided.

The report should describe any potential or actual effect on federally-supported activities. This also applies to incidents that have occurred in a functional, programmatic, or physical area not supported by the PHS or NSF that could affect PHS or NSF-supported activities.

Lastly, if the incident involved PHS or NSF-supported activities and was not compliant with the terms and conditions of grant award, the report must confirm that the situation was reported to the funding component and that all unauthorized costs initially paid from the grant have been removed and covered by other sources. Or, the report must certify that no unallowable costs were charged during the noncompliant period.

I’d like to emphasize again that there is no need to identify individuals by name. OLAW is assessing the adequacy of the institutions response to a noncompliant situation.  There also is no need to identify the individuals by name that investigated the incident. Instead their general title such as chair of the IACUC, Attending or clinical veterinarian or members of the Post Approval Monitoring office can be the description provided.

Megan:         Great advice. Thank you , Maggie, getting down to the specific how and who I know that each NIH institute and center has a FOIA officer.  What types of information would someone come to OER for, as opposed to one of the other FOIA offices?

Maggie:  As noted earlier requests for grants or any information related to a specific funded grant should be directed to the FOIA coordinator for the IC funding the grant.  OER will handle requests about assurances and non-compliance situations, as we discussed with Pat. We also respond to requests for summary data for NIH grant funding, and other topic specific to overall NIH activities

Megan: What is the proper way to submit a FOIA request?

Maggie:  A request may be electronic or paper. Email requests with the name and mailing address of the requester (no P.O. Box), if it is on behalf of an institution or organization, their name and a telephone number of that institution or organization.  Then a description of the records sought in reasonable detail. This should be sent to OERFOIA @ mail.nih.gov.  A list of all FOIA Coordinators is found at the NIH FOIA web page. If you search for NIH FOIA you will find it on the web

Megan: thank you Maggie. Any closing thoughts for our audience:

Maggie:  Yes please.  FOIA is a request for documents in the possession of the US government.  We cannot provide what we don’t have. We are not allowed to create reports specifically to respond to a FOIA.  It is important that the request indicate what document or specific data you are requesting not what question you want answered.

Also FOIA may not be free. Fees may be assessed.  Check the NIH FOIA website for additional details.

Megan: Thanks to you both for sharing with us today. For NIH and OER, this is Megan Columbus.

Announcer: For more information about the NIH freedom of information act, please visit www.NIH.gov and search for NIH FOIA once again that’s NIH FOIA