Case Hopes to Expand What is Available under FOIA
By Harry Hammitt
Editor/Publisher, Access Reports
While the Freedom of Information Act gives anyone the right to ask for any government information, that right is severely limited by what actually qualifies as an “agency record.” A recently filed complaint in the U.S. District Court for the District of Columbia, Beveridge & Diamond v. Dept of Health and Human Services, No. 1:13-cv-01379-RLW (D.D.C.), filed September 11, deals with a defining issue under FOIA—what qualifies as an agency record when the agency has neither physical control or custody of the record—that has received relatively little attention in the courts. Can an agency exercise sufficient control of a record in the possession of a third party—almost invariably a contractor or grantee—so that the agency can be considered to have “constructive” possession and control? To the extent that there is any case law on the issue of constructive possession, it suggests that the degree of control the agency exercises over the collection or use of such records is crucial to making a determination.
The case stems from a request by Beveridge & Diamond for data relied upon in “Genetic Modification of the Association of Paraquat and Parkinson’s Disease,” a paper co-authored by scientists at the National Institutes of Health, the Department of Veterans Affairs, and several non-governmental entities. The report relied upon data related to the Farming and Movement Evaluation study, a collaborative effort involving investigators from the National Institute of Environmental Health Sciences, the National Cancer Institute, the Department of Veterans Affairs, and the Parkinson’s Institute and Clinical Center. While the law firm acknowledged that the data was maintained by the Parkinson’s Institute and Clinical Center, a third-party contractor, it argued that NIH had a right of access and control over the data. In its letter rejecting the law firm’s request, NIH responded that “the FAME study is being conducted by the Parkinson’s Institute and Clinical Center in Sunnyvale, CA, not by NIEHS or any other component of NIH.”
To succeed in its lawsuit, Beveridge & Diamond must get over a rather steep hill placed before would-be litigants by the U.S. Supreme Court in two companion cases decided in 1980. In Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136 (1980), the Court concluded that courts only had jurisdiction to hear FOIA cases when an agency improperly withheld records in its possession, custody, and control. Because the State Department did not have legal possession or control of Henry Kissinger’s records from when he served as national security advisor to President Richard Nixon, even though the records were stored at State, the requester had no cause of action.
In Forsham v. Harris, 445 U.S. 169 (1980), the Court considered whether records created and maintained by university researchers under a federally-funded grant were agency records subject to FOIA disclosure. The Court found the records were not subject to FOIA because the agency did not have physical control or custody of the records. Although the grant provided that the agency could have access to the records, the agency said it had never exercised its right to do so and had no intention of accessing the records. The Court made clear that some form of constructive control was required beyond merely funding the research.
For reasons driven more by politics than information policy, Congress carved out an exception to Forsham in 1998 when it passed the Shelby Amendment on Access to Research Data. That provision requires agencies that provide grants to institutions of higher education, hospitals and other non-profit organizations to allow access under FOIA to data generated in studies by those grantees when the data is used by the agency in promulgating a regulation. The Shelby Amendment applies only to grants and not contracts.
As if the obstacles presented by Forsham and Kissinger were not enough, the case law supporting the existence of a right of access to records in the constructive control of an agency is sparse. The leading case is Burka v. Dept of Health and Human Services, 87 F.3d 508 (D.C. Cir. 1996), in which the D.C. Circuit held that a data tape concerning teen smoking habits in the possession of an agency contractor was an agency record because the agency had exercised considerable supervision over the collection and use of the data and, further, had relied on the data in developing agency policies. In Chicago Tribune v. Dept of Health and Human Services, 1999 WL 299875 (N.D. Ill. May 4, 1999), the court relied primarily on Burka to conclude that the work done by a contractor in re-analyzing the results of a breast cancer study previously conducted by NCI largely implemented specific directions from the agency and, thus, qualified as an agency record. Perhaps the most recent case was In Defense of Animals v. NIH, 543 F. Supp. 2d 70 (D.D.C. 2008) where the district court found that records related to the care of agency-owned chimpanzees housed at a contractor’s facility qualified as agency records.
In the present case, Beveridge & Diamond has not only highlighted the degree of agency involvement with the FAME study and data related to it, but also argues that the agency previously disclosed data from a similar report in response to a 2011 request by the law firm. The law firm notes that the FAME study is a case-control study which is part of the Agriculture Health Study, a “wide-ranging” research project co-sponsored by NIH and EPA. Further, NIEHS features the FAME study on its website, including a list of publications using FAME data and authored by agency staff and collaborators. The law firm points out that NIH previously disclosed data related to the FAME study in response to its 2011 FOIA request.
Convincing the court that NIH exercises constructive control over the FAME data will not be easy. But because Burka is a D.C. Circuit decision it carries precedential weight with the district court. Regardless, Beveridge & Diamond will need to convince the court of the existence of a degree of control over the third party, typically reflected in close and frequent supervision by the agency, that is difficult to show.