Freedom of Information Act (FOIA) requests submitted to the NIH Office of Laboratory Animal Welfare (OLAW) have snowballed in recent years, and research institutions submitting reports and records to OLAW should assume those records will be released, top officials said.
Therefore, researchers preparing these reports should take steps to make certain the information they submit is complete and accurate, but should omit information and documentation that is not required, said Axel Wolff, deputy director of OLAW.
“There is an extremely high likelihood that your institution’s records, including noncompliance reports, assurances, annual reports, correspondence, photographs, and other media will be released under a FOIA request to OLAW,” Wolff explained during an OLAW webinar Dec. 10.
This has gotten far more likely in the last decade, Wolff said. “Over the last 10 years, very broadly worded FOIA requests have been submitted seeking information for all research institutions with an animal welfare assurance in the given state or states.” In prior years, an individual might have requested a single case file for a single institution, he said. “This is no longer the case, and requests are now being made in the form of an ever-widening net.”
For example, a single request might be made for all correspondence between OLAW and every institution in the state of California, Wolff said. “This one request can yield dozens or hundreds of documents,” he said. “This is compounded when the same request asks for all documents in a series of states, which may just be in alphabetical order taken from the OLAW list of assured institutions. Based on these trends, the likelihood is very high that your institution’s records on file with OLAW will be released.”
Requestors May Be ‘Building Libraries’
The number of requests for OLAW records has more than doubled in the past four years, said Gorka Garcia-Malene, FOIA officer for NIH. Increasingly, requestors also seek pictures submitted to the agency, he said.
“Until about two years ago, requests for OLAW records were sporadic. They focused on specific institutions and on specific species,” Garcia-Malene said, speculating that “perhaps the goal at that time was to gather information rather narrowly for direct action, that is, for lobbying on or commenting on certain records publicly.”
Now, however, requestors tend to systematize requests, he said. “So, for example, every few weeks, we’ll receive a request for annual reports and assurances for the next batch of assured institutions,” Garcia-Malene said. “What that means is, eventually, information is provided to requestors for all assured institutions on a rolling basis. So in addition to the work these requestors were conducting in the past, requestors appear to be building libraries of materials for further dissemination, perhaps to amass a broader scope of information to empower local grassroots efforts.”
Many different categories of people and groups request OLAW records through FOIA, Wolff said, including attorneys, students, animal interest groups and media representatives. OLAW does not create records, alter records, consider the requestor identity, consider potential use of the record, or create ways to search for responsive records, Wolff said.
“Information accessed under FOIA is often used by activist groups to attempt to influence the public and end the responsible use of animals in research,” he said. “Information has been used to issue misleading press releases, request investigations, and ultimately ask for enforcement actions against researchers and institutions for alleged noncompliance with animal welfare laws,” Wolff said.
There are multiple other uses for the content of the records, he said. “Information also is used by the media in articles, by students writing position papers on animal research, by attorneys filing suit on behalf of a client, by disgruntled employees wishing to embarrass an institution by publicizing negative information or to support allegations of reprisal, by citizens looking for pets, or simply [by] curious individuals wishing to follow up on a news article.”
In the first nine months of 2020, a total of 209 individual records requests were made, yielding a total of 3,187 separate noncompliance reports, Wolff said. The requests also led to release of 1,616 assurances with annual reports, he said, adding, “of the 209 requests made, 204 were from activist groups.”
Think ‘Minimal But Complete’
The purpose of the FOIA is to enable people to know what the government is doing, said Garcia-Malene. Exemptions permit the withholding of certain information, but “FOIA is a vital part of our democracy,” he said. Agencies in the federal executive branch, independent regulatory agencies and some components in the Executive Office of the President are subject to FOIA requests, while the federal legislative and judiciary branches are not, he said. Any person or entity can file a FOIA request, including noncitizens, state agencies and courts. However, federal agencies and fugitives cannot file FOIA requests, he said.
OLAW can’t alert institutions when a FOIA request has been filed for their records, Wolff said. Therefore, it’s best to prepare documents anticipating that they will be released unless they’re exempt, he said.
“Ensure that information provided to OLAW is complete and accurate, but do not include information that is not required by this office, such as personal identifiers, room numbers, building plans, photos [or] graphic descriptions,” Wolf said. “Note that routine telephone inquiries about whether an item is reportable does not generate a record of call and is therefore not releasable under FOIA.”
There are several exemptions to FOIA requests, including Exemption 4, which protects trade secrets and information that is commercial or financial, obtained from a person, and privileged or confidential.
“Exemption 4 is commonly used at NIH,” Garcia-Malene said. “Folks are typically surprised to learn that a large proportion of the FOIA requests we receive are for grant records. These and other types of records are submissions to the agency that tend to contain a good deal of trade secrets or confidential commercial information. That is what Exemption 4 is meant to protect.”
This safeguards the interests of submitters, he said. “It encourages submitters to furnish useful commercial or financial information to the government, and it correspondingly provides the government with an assurance that such information will be reliable, so it can conduct its business,” Garcia-Malene said.
Exemption 5, which protects the internal predecision deliberations of government staff, and Exemption 6, which protects information that would result in a clearly unwarranted invasion of privacy, are also used by OLAW. Exemption 7 is cited when the records relate to a pending investigation—for example, when NIH is investigating noncompliance reports, Garcia-Malene said.
OLAW will not release information that falls under these exemptions, Garcia-Malene said. However, all other information is fair game, he warned. “FOIA provides any person the right, which is enforceable in court, to access federal agency records, except those that are protected from public disclosure by specific exemptions and exclusions,” he said.