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Information regarding research obtained under the FOIA and state open records acts can be used to target
research institutions, individual projects, and specific investigators working
with nonhuman animals and human subjects. Institutions conducting research in
any capacity, but especially those with nonhuman animal research programs, should
be prepared to respond to FOIA and open records requests.
PRIM&R is pleased to offer our members free early
access to the 2022 PRIM&R Annual Conference session, “Is
Your Institution Ready to Handle Open Record and FOIA Requests?,” along
with a summary with recording timestamps. During this session, speakers
reviewed the use and abuse of open records and FOIA laws in obtaining
information about research programs, highlighted the importance of having plans
in place, and discussed internal (e.g., IRB, IACUC, IO, FOIA Office, legal
counsel) and external (e.g., regulatory and accreditation agencies, media
outreach) communication strategies when open records/FOIA requests are
received.
Session Speakers:
View
"Is Your Institution Ready to Handle Open Record and FOIA Requests?"
Recording
(00:00-03:03) Introductions & Learning
Objectives
(03:04-05:00) The Difference Between FOIA and
State Laws
FOIA only applies to information held by federal agencies and, within the research enterprise, are often aimed at nonhuman animal program records.
Records of programs that receive federal funding are subject to FOIA requests
and many federal granters, like NIH, will contact a funded institution if they
receive a request that includes said institution’s records. Institutions can request redactions prior to the federal agency disclosing
that information via the FOIA response.
The intellectual property of investigators and the location
where animals are housed can sometimes be granted redaction under FOIA exemption four, which “Protects
trade secrets and commercial or financial information which could harm the
competitive posture or business interests of a company.” This information can
sometimes qualify as “commercial information,” the disclosure of which, could
harm the institution. However, institutions must be judicial when requesting these types
of exemptions.
Under FOIA
exemption six, the names of nonhuman animal researchers and staff can be
redacted. Exemption six “Protects information that would constitute a clearly
unwarranted invasion of personal privacy of the individuals involved.” Even if
a granter does not feel like they can redact names, they may still be willing
to ask the requester if they will agree to such redactions. Most established
organizations will agree.
In addition to FOIA, state public records laws dictate that a person and/or organization can request open records and information from nonhuman animal programs. These laws widely vary from state to state.
(05:01-06:54) Who Makes FOIA
and/or Open Records Requests?
- People, groups, or companies who oppose certain types of research or seek to discredit certain results
- Other researchers/competitors
- Investigative journalists
- Legislators seeking information to inform potential policy and legislation
- Research participants or others looking for research data
While formally constituted organizations are not the ones who typically make threats or engage in harassment, they do publicize information that they receive about studies through the public records processes. The publicization of this information can reach people and/or groups which can cause a variety of impacts:
1. Threats/harassment of researchers and staff.
2. Regulatory or other legal action.
3. Negative ad campaigns, protests, or to increase membership in an organization.
4. Increased and unsustainable research costs.
5. Stifled collaboration between public/private entities.
6. Dishonest individuals attempting to obtain information before publication.
7. Interference with ability to patent.
(09:12-17:43) Examples of Abuse Using Public Records Requests
(17:44-22:40) Open Records Requests on the Federal Level
The National Association of Biomedical Research (NABR) does a FOIA requests review every year to identify trends. NABR’s recent findings show that instead of the specific targeting of a singular institution, many broadly worded requests are being sent to a multitude of institutions. For example, each institution in a state, or each institution doing a specific kind of research, will receive a similar FOIA request from the same requester.
In 2020, there was a 35% decline in FOIA requests to the USDA, and this was likely caused by the Animal Care Public Search Tool, available on the USDA’s website.
In 2021, there was a 16% decline in FOIA requests to the NIH, and this was likely due to the shift of more broadly scoped requests, in lieu of requests for specific information. In general, the quantity of FOIA requests received has decreased, but the amount of information included in each request, has increased.
(22:41-24:20) Relevant FOIA Decisions
(24:21-28:00) State Open Record Laws
In 2021, the Climate Science Legal Defense Fund created a comprehensive “state report card” titled, Research Protections in State Open Records Laws: An Analysis and Ranking. The report covers each state’s statutes, case law, and opinions with the goal of ensuring an informed electorate.
A few common exemptions across states include bona fide research projects, which can include unpublished data or any information, that if disclosed, could result in loss for the institution. Many states also have statues that pertain to the protection of trade secrets, proprietary information, and confidential, commercial, or financial information.
(28:01-32:48) Relevant State Open Records Decisions
(32:49-47:05) Responding to Open Records Requests
Human Subjects Research Requests: The following considerations should be addressed prior to disclosure of information concerning human subjects research:
- Investigators intellectual property
-
Trade secrets or research exemptions
- Review contracts between industry to ensure understanding of what your institution has agreed to keep confidential as sponsor’s proprietary information.
-
HIPAA and state medical record privacy laws
- Understand whether your research is within your Healthcare Component and whether data they maintain is covered by HIPAA.
- Promises of confidentiality made to participants in consent
-
Federal Certificate
of Confidentiality
- Granted automatically to NIH funded research
- Trade secrets or research exceptions
- Personal identifying information of staff
- Crime prevention strategies
- Anything overly broad or unduly burdensome
- Educate your employees on what constitutes as a “record” and what does not.
- Understand applicable records schedules, and when records that are not longer needed can be destroyed.
- Understand what information is required to be included in minutes.
- Charge costs, when permitted by law, before records are released.
- Consider what kinds of records to create and the institution’s ability to protect them.
- Use university issued tools and accounts to store records.
- Create a standing group to review records before they are released (institutional official, researchers, legal team, and communications department).
- Require the use of correct processes and systems for making requests.
- Track any received threats and harassment.
Having communications strategies and processes in place when potentially sensitive information is released is important considering the quick media cycle. Consult regulatory, oversight, and accrediting agencies as part of your communication. For example, you can use communication with offices such as NIH OLAW, to showcase your self-regulation, and advocacy offices, such as NABR, offer strategies and tools for responding to harassment or other media inquiries.
Creating proactive stories for the public while conducting research has also proven to be a well-received strategy.
(52:28-End) Summary & Q&A
- Open records laws can be abused.
- Understand your state’s open record laws.
- Only release the required information.
- Identify and store records for easy retrieval.
- Create a plan for the destruction of records according to requirements.
- Create a standing group to review records before release.
- Have an internal and external communication plan.
June 20 Virtual Roundtable Slides: Handling Public Records/FOIA Requests
NABR – Responding to FOIA Requests: Facts and Resources
FASEB – Animal Research Activism Report: Update and Recommendations to Promote Communication, Transparency, and Public Outreach About Animal Research