Wednesday, February 13, 2013
Re: Request for records concerning a study on the "potential health effects of exposure to formaldehyde" Disposition: Granting Defendant's motion to dismiss with regard to research data that is publicly available but finding that court cannot hold that defendant conducted an adequate search for records based upon the record before the court
- Exhaustion: OMB Circular A-110 requires "Federal awarding agencies to ensure that all data produced under an award will be made available to the public through the procedures established under [FOIA]." As the court notes, pursuant to this provision, "[n]ot only must [agencies] produce their own responsive 'records,' but they must also request 'research data' from the grantees of the pertinent federally funded research study." The court declines to decide whether plaintiff's request reasonably described a request for research data from grantees beyond a single portion of the request that specifically requested data (item 2f). However, the court finds that defendant's response to plaintiff's request put it "on notice that the Agency had not sought research data other than that requested in item 2f" of the request. The court concludes that "[e]ven if HHS's interpretation of the request was wrong, Plaintiff forfeited its right to challenge that interpretation because it failed to exhaust its administrative remedies on the issue before the Agency." As the court notes, plaintiff "never mentioned research data beyond 2f" in its appeal letter.
- Adequacy of Search: With regard to the portion of the request that sought research data from the Zhang Study's grantees (item 2f), the court finds that "[b]ecause the data in item 2f was already fully incorporated in the Zhang study, which Defendants had made publicly available through their website, their refusal to request that data from the study's grantees was proper." With regard to plaintiff's request for the agency's records (and not the records from the grantees), the court concludes that HHS has not provided "the requisite affidavits necessary to carry their burden on the adequacy of their search." The court accordingly denies HHS's motion for summary judgment with regard to this issue.
Adequacy of Search
Updated August 6, 2014