The intersection of the NIH Guidelines, FOIA, and state open records

“Thank you letting us turn your request under the Guidelines into one under our state law. You are now number 8,211 in line. You will receive blacked out documents in about the year 2028. Have a nice day, Sincerely, The Marketing Dept and General Counsel’s Office. Go State! Winning!”

One of the purposes of this website is to document a few things I’ve learned from years of tracking Institutional Biosafety Committees using the Public Access Provisions of the NIH Guidelines. The aim is to be useful to others who will file future requests. In addition to talking about the intersection of the Guidelines and laws, this post is a bit of a walk through of an NIH Guidelines request that may help you not fall into traps that I learned about the hard way.

(Today’s victim: The USDA National Wildlife Research Center, read on!)

A few days ago, the question of how the Guidelines relate to state open records laws first came up in reference to the dysfunctional situation at the University of Tennessee. This post goes further into the Guidelines’ status vis-à-vis FOIA and state records laws, because it is a really quite an important issue. If you don’t know how these different obligations relate to one another, and don’t relate to one another, the sociopathic but clever lawyers at universities and other labs will use your ignorance to screw you left, right, and center.

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Doing it Wrongly: The University of Tennessee

The University of Tennessee Health Science Center in Memphis doesn’t want you to be able to read its laboratory safety records.

Some universities try to use state laws to prevent release of records under the federal NIH Guidelines. This problem most frequently occurs in states with lousy open records rules. The worse the state law, the more likely the university will try to use it against requests for IBC records.

But state laws have nothing to do with the NIH Guidelines and cannot be used to undermine the Public Access Provisions. That doesn’t stop the universities from trying, however, and they are effectively encouraged to do so because of the NIH Office of Science Policy’s (OSP) extreme reluctance to enforce its own rules.

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