HHS takes three and a half years to tell us “there are no records responsive to your request”…for a letter we know exists

the waving cat, via Flickr

If you file public records requests regularly, you have likely become used to how long they can take, and how few documents you may end up with. We certainly have. But we’re prompted to share a particularly frustrating experience with the NIH.

Settle in. This is a three-and-a-half year tale — and counting.

On May 8, 2018, we made a public records request to the NIH under the Freedom of Information Act for “Any Correspondence between the Office of Policy for Extramural Research Administration (OPERA) and officials at Duke University during the month of March 2018.” We did so because, as we reported on March 23, 2018 in Science, the NIH had:

imposed unusual new requirements on researchers based at Duke University in Durham, North Carolina, who receive federal funds. The changes are a response to concerns over how the institution handled recent cases involving research misconduct and grant management.

Our tip for that story — which was part of our years of coverage of a whistleblower case that ended in a $112.5 million settlement between Duke and the U.S. government over grant fraud allegations — came from a letter Duke sent to all faculty on March 21, 2018 that included this passage:

Last week, the NIH Office of Policy for Extramural Research Administration (OPERA) notified Duke that, effective April 1, 2018, every Duke NIH grantee will be required to SEEK PRIOR NIH AUTHORIZATION for all no cost extensions of any final grant budget periods and unobligated balance carryforwards. 

This didn’t seem like the kind of thing to be left to a phone call, so we figured there was correspondence. We filed the FOIA request on May 8, and waited, as one does.

Six months later, we heard back. In a Sept. 21, 2018 letter that the NIH FOIA office didn’t see fit to send us until November 16, officials told us that the NIH Office of Extramural Research — of which OPERA is a part — “did not possess or maintain the records you have requested.” That seemed odd, since OPERA would have sent the letter we were looking for. 

They also said they were referring the request to HHS’ FOIA office, since it fell under the jurisdiction of the Office of Research Integrity. That didn’t make any sense either, since ORI is not part of OER. But it at least explained the September 26 letter from HHS’ FOIA office that we had received but not quite understood.

We tried telling them on November 16 that they were in error.

Crickets.

We didn’t hear from HHS’ FOIA office again until nearly three years later, on Aug. 9, 2021. By then, we had obtained the letter by searching court records in the whistleblower suit. 

Dated March 12, 2018, the letter did more than just notify Duke of the new requirements on their grants. As we reported in Medscape in May 2019, the letter also revealed

allegations of research misconduct against several investigators in the Duke Department of Psychiatry and…potential issues concerning clinical research irregularities such as not adhering to the research plan, inadequate reporting of adverse events to the [institutional review board] IRB and regulatory agency, and signing data forms without conducting assessments…

At that point, we obviously knew the letter existed. But we were guessing that there may have been more letters from OPERA to Duke during the month of March, so we left our FOIA request in place.

The letter from HHS’ FOIA office on Aug. 9, 2021 was a “continuing interest letter” that read, in part: 

We apologize for the delay in responding to your request. However, because of the increasing number of requests received by the Department of Health & Human Services, we found it necessary to adopt the ruling in the case of Open America v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C. Cir. 1976) and exercise due diligence by following a first-in, first-out FOIA processing.

Were we still interested in pursuing this? Yes, we told the office. 

Then we waited again.

On October 21, we received a “no record response” letter from HHS’ FOIA office. The punchline:

The Office of Research Integrity (ORI) conducted a search and reports there are no records responsive to your request. 

So, to sum up: The NIH and HHS took three and a half years to tell us that they did not have a letter that we know exists because we have it. It remains unclear why the ORI would have it in the first place, and this all feels a bit like telling your parents to search your brother’s room for the weed you know is in yours.

We’ve appealed, because we want to know if any other correspondence was sent during that month.

Stay tuned.

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2 thoughts on “HHS takes three and a half years to tell us “there are no records responsive to your request”…for a letter we know exists”

  1. I sincerely hope that 1) There is a thorough and forthright investigation of the failure to properly respond to this FOIA request, and that 2) there is a benign explanation for the outcome so far. Absent a proper investigation and there will be plenty of conspiracy theories to account for this screw-up. Does HHS really want to place themselves in the position to encourage even more conspiracy thinking?

  2. RW – Concur: The inclusion of a “records search” by the ORI in the Oct 21, 2021 Zadrovitz/Perkins non-response is totally mystifying. . . Unless perhaps a bungled misstep by the NIH of a potential privacy act issue? (But it’s Anyone’s Guess).

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