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.
Why many American public universities are so vigorously opposed to transparency is a depressing discussion beyond the scope of this website. But in case you didn’t know, there are cubicles sprinkled across this country that are inhabited by sad little trolls, mostly lawyers and paralegals, whose publicly-funded job is to fight against the public as if it were a mortal enemy. Tasked to be adversarial, they notch up a “win” by denying open records requests. These diminutive ogres are usually found clawing their way around the general counsel and/or public relations departments. Though they often anger me, most of the time I just feel sorry for them. It must be a grim existence.
Coming back to the point, no matter what any state open records law says, the obligation to release records in the NIH Guidelines is federal in origin, and it is enforceable as a matter of contract law and withdrawal of eligibility for federal funds. So if a university wants to invoke its state law to deny records in ways that are inconsistent with the Guidelines, it can, but the result should be that it loses federal funding for rDNA research, which is a death sentence for biotech research programs.
The example we’ll use to discuss this issue: The University of Tennessee (UT). Ten or fifteen years ago, UT institutions were not problematic about access to IBC records, but in recent years something has changed.
On July 15th of this year, I presented a request for meeting minutes to the IBC office of the University of Tennessee Health Science Center in Memphis. This is the correct way to make a request for IBC minutes. You go to the Biosafety Officer or the IBC Chair, or both. UTHSC Memphis is, by the way, a fairly significant research institution with large BSL-3 biodefense labs and select agent projects.
Although Tennessee law is irrelevant, my request was forwarded by the Memphis IBC to the UT System office that handles state open records requests. That office is 350 miles away in Knoxville, a place whose major claim to fame is hosting the world’s longest nonstop downtown highway construction projects (four decades and counting).
The next day, which was remarkably fast, I heard from Melissa Tindell, who inhabits a cubicle at the University of Tennessee System “Office of Communications & Marketing” . Whenever you ask for IBC records and hear back from the marketing department, place your bets on things not ending well.
Ms. Tindell didn’t say she would give me the records, rather, she told me that, “As an initial first step, I will need you to verify your residency in the state of Tennessee.” She further said that I should send her a picture of my driver’s license.
Of course I refused. And I don’t have a Tennessee driver’s license anyway.
There is no residency requirement under the Guidelines, and any person anywhere – at least in the US and perhaps overseas – can request the records of any IBC (there’s a list here). What Ms. Tindell was trying to do, by invoking Tennessee’s archaic residency requirement for requests under its state law, was to kill my request under the Guidelines.
After letting Ms. Tindell know that she could take her demand for my drivers license and shove it, I reminded her that she was still required to release the records despite my orneryness, and said that I would lodge a complaint against UTHSC with the NIH Office of Science Policy, the toothless “enforcer” of the NIH Guidelines.
(There will be many forthcoming posts discussing NIH OSP. Yes, I’m looking at you, @CWolinetzNIH.)
That was the end of it, until today, two and a half months later, when I decided to check back in with Ms. Tindell about my overdue minutes. She informed me that she had “cancelled” my request, something she had no power nor reason to do.
Notably, copied on the correspondence chain since the request wound up on Tindell’s desk was Jim Goodman, the UTHSC Vice Chancellor for Research, a senior UTHSC attorney, Mark Pettinger, a professor who I assume to be the IBC Chair, and the IBC office. And over the course of this incident, those leaders of UTHSC don’t appear to have lifted a finger, despite the obligations of their institution.
This would suggest that the NIH Office of Science Policy has made no move to respond to my complaint and elicit UTHSC’s compliance with the Guidelines. But sitting on its hands in the face of widespread noncompliance is the Office of Science Policy’s standard operating procedure, a subject which, again, will be explored in depth soon.
So, two and half months after I correctly presented a request for IBC records at UTHSC, the University of Tennessee’s obfuscation about state law residency requirements remains successful. And both senior leadership of UTHSC and the NIH Office of Science Policy appear content to watch this noncompliance with the NIH Guidelines play out without taking action.
The lesson for UTHSC is that NIH won’t enforce its own rules.
More on that residency thing
Of course the fact that the Guidelines don’t have a residency requirement is what it is, and that’s really the end of the issue, full stop. But let’s take this case as an example of why a residency requirement, or more generally, subjugation of the Guidelines to state laws is unworkable.
UTHSC operates a BSL-3 regional biocontainment laboratory (RBL), one of about a dozen large purpose built labs for the study of biological weapons agents that were sprinkled around the country after a scientist working at another biological weapons lab sent the anthrax letters in 2001.
UTHSC’s RBL appears to be located near the southeast corner of its campus. UTHSC probably thinks the exact address is security sensitive information, though the purpose of the building would apparent to anyone halfway knowledgeable that walked by it. UTHSC, like everything else near downtown Memphis, is crammed up against the east bank of the Mississippi River, so even if the lab is on an opposite side of the campus than I believe, what follows would remain essentially unchanged.
As the map above shows, from the approximate location of the RBL to another state – Arkansas – the distance is about two miles. Say three miles to get over a levee or two and reach dry land. If one of the stacks on top of UTHSC’s lab were to spout out any of a number of the bugs inside it today, it is quite plausible that those bugs would reach, and could infect, people in Arkansas. Who are ineligible to file a Tennessee open records request and learn about activities in the lab, despite obviously having skin in the game, seeing that they live in the fallout zone.
West Memphis, Arkansas is an industrial suburb with chemical factories and refineries. Its skin is frequently black and often poor. The city is over 60% African American and has a per capita income under $14,000. So maybe it doesn’t matter so much to the high flying research community at UTHSC.
(I should mention that the pink area just north of I-40 on that map, just below the word “UPTOWN”, is St. Jude’s Children’s Research Hospital, where there are more BSL-3 labs handling potentially pandemic viruses. St. Jude’s is also subject the Guidelines – but not the Tennessee law, it’s a private institution – and its labs are even closer to Arkansas.)
Of course a puff of plague coming out of the lab’s stack isn’t the only potential vector. Another would be a researcher or other worker walking out of the lab itself with an infection. Lab-acquired infections broaden the immediate scope of concern, so to speak.
Wealthier Memphis suburbs not in Tennessee can be found a mere ten miles south of UTHSC’s labs. In fact, it wouldn’t be surprising if some of the UTHSC RBL’s employees lived in fast growing sprawls like Southaven, Mississippi, where per capita income is nearly twice that of West Memphis and residents are even more likely to be white than West Memphis’ are to be black.
They may have more resources, but the people in Southaven are in the same boat as those in West Memphis as far as knowing what’s happening in UTHSC’s labs is concerned. They have no access. Except via the Guidelines. Because of the Tennessee law’s residency requirement. And even if they did, there is no reason to assume that records released under the Tennessee law would not be redacted beyond any usefulness.
The purposes of the Public Access Provisions, according to the NIH leadership, include “public accountability at the local level“. How is an institution that refuses to release records to people living three miles away accountable at the local level? And what does UT’s behavior say about the people that run UTHSC’s research, including its regional biocontainment lab?