The Public's Business Ought to be Public | Opinion

Last November my organization, Empower Oversight, sued the National Institutes of Health (NIH) for failing to comply with Freedom of Information Act requests related to the agency's response to the COVID-19 pandemic. Around half a dozen other entities have also been forced to go to court to compel the NIH to make pandemic documents public.

It's worth noting that this didn't need to happen. Good lawyers charge hundreds of dollars an hour or more and hiring legal talent to pursue cases full time is not easy. By forcing public interest groups to spend this money on litigation before complying with Freedom of Information Act (FOIA) requests, the NIH is locking out the vast majority of Americans from accessing federal records. It takes financial resources to most effectively probe how our government operates.

Only after suing NIH did we receive any documents. In March, we released hundreds of emails in a report about the NIH deleting the sequences of viruses from a database they operate. These viruses are closely related to the COVID-19 virus. Experts say that analyzing them may help us understand how the pandemic began.

Four email exchanges stood out. First, emails show that the NIH appears to have misled reporters about why those sequences were deleted from public view and steered journalists away from a New York Times story, toward more favorable coverage in the Washington Post.

Second, NIH officials told the public that the pandemic most likely began when an infected animal sickened a human in a market in Wuhan, China. But we found an email with prominent scientists advising NIH that the sequences at the heart of the controversy suggested that explanation was less likely.

Third, we found that NIH Director Francis Collins was reviewing and clearing FOIA requests from reporters, an odd use of time by the director of a public health agency in the midst of a pandemic.

Fourth, a virologist asked the NIH to analyze the deleted sequences of viruses closely related to COVID-19, of which it retains copies for "preservation purposes." But the NIH refused to cooperate. A few days after we released our report, Vanity Fair confirmed and expanded on our findings. It reported on many of the same emails we released, including several describing a Sunday afternoon Zoom call with outside experts, Collins and Anthony Fauci—the NIH official most prominently associated our country's pandemic response. The weekend Zoom call came just as information about NIH's removal of sequences at the request of a Wuhan researcher was about to become public.

In the last 18 months, two news organizations have taken the NIH to court, where judges forced the agency to release public documents. In early June, Buzzfeed published emails sent and received by Dr. Fauci, who is now chief medical adviser to the president. The public has a right to understand how the government handled a pandemic that has killed so many Americans, but the agency only made the documents public after Buzzfeed sued.

The same thing happened again with The Intercept, a fiercely independent news site which has published blockbuster stories in recent months about the NIH's funding of research by the EcoHealth Alliance, a nonprofit that collaborates with and funds the Wuhan Institute of Virology (WIV). Last September, The Intercept published 900 pages of internal NIH documents related to U.S. government financing of research at the WIV. Among those hundreds of pages, the reporters found new evidence that the NIH was funding research many scientists describe as "gain of function," a type of study that involves making viruses more dangerous.

Rochelle Walensky and Anthony Fauci
WASHINGTON, DC - NOVEMBER 04: Centers for Disease Control and Prevention Director Rochelle Walensky (L) and NIH National Institute of Allergy and Infectious Diseases Director Anthony Fauci arrive ahead of testifying before the Senate Health, Education, Labor, and Pensions Committee about the ongoing response to the COVID-19 pandemic in the Dirksen Senate Office Building on Capitol Hill on November 04, 2021 in Washington, DC. Earlier this week Walensky gave final approval for the Pfizer-BioNTech coronavirus vaccine for children between 5 and 11 years old. Chip Somodevilla/Getty Images

The NIH has denied that federal monies were used for gain-of-function research at the WIV that could have led to the pandemic, but Vanity Fair reported in October that the agency was forced to admit it had funded the risky research. A week afterward, The Intercept published even more NIH emails, this time showing that the EcoHealth Alliance had helped to craft the very language that governed the gain-of-function research that the NIH funds and is supposed to regulate. But none of this would have come to light if The Intercept had not taken the NIH to court to force the agency to comply with public information requests.

These two news sites are not alone.

Both liberal organizations—such as the Center for Food Safety—and conservative groups—such as Judicial Watch—have had to sue the NIH to understand its funding for gain-of-function studies. Meanwhile, other public interest groups such as Knowledge Ecology International and Public Citizen have sued the NIH to uncover its role in developing COVID-19 pharmaceutical therapies. These requests are important because taxpayers helped subsidize vaccines for which we are now paying top dollar.

Even when the NIH does respond to FOIA requests, it does not always disclose much. In the article about Dr. Fauci's emails, Buzzfeed reported this summer that the documents the agency released were "just a portion of what was requested, and they are filled with redactions, making them an incomplete record of the time period and Fauci's correspondence."

In one example, the NIH redacted part of an email citing exemption B7, which is an exemption for "law enforcement purposes." However, when senators on an investigative committee requested similar records from the agency, that same passage of the email was unredacted, exposing what the agency exempted for "law enforcement purposes." In the email, Peter Daszak of the EcoHealth Alliance told Fauci about the "work we've been doing in collaboration with Chinese virologists."

Upset that the NIH was using exemptions to hide embarrassing information, senators pointed out that the paragraph does not appear to contain any information that "could reasonably be expected to interfere with [law] enforcement proceedings."

In fact, a small nonprofit called U.S. Right to Know hired an attorney to sue the NIH for withholding documents by citing law enforcement purposes. "We want to know whether the US or Chinese governments, or scientists affiliated with them, are concealing data about the origins of SARS-CoV-2, or the risks of biosafety labs and gain-of-function research," the group announced when filing its lawsuit.

We all pay extra when anyone sues the government. The process sucks up court time and expenses, and forces lawyers at the Department of Justice to get involved and collect agency documents. It would all be cheaper and faster if the NIH simply followed the law in the first place.

In 2016, the Government Accountability Office (GAO) examined how much it costs taxpayers when an agency ignores a FOIA demand, forces litigation, loses and has to pay the plaintiff's attorneys fees in addition to its own lawyers' time spent fighting the litigation. GAO found that the data is not tracked well enough to provide a definitive answer, but with the taxpayer potentially on the hook for both sides of the court battles, the cost adds up fast. In one subset of agencies and lawsuits with enough data to track, GAO found that for 57 lawsuits which the government lost, taxpayers paid $1.3 million between 2009 and 2014.

In short, we are all losing. Americans pay far too much to force agencies like the NIH to be transparent. Holding them accountable through litigation remains hard, but important work.

Jason Foster is the founder and president of Empower Oversight, a nonprofit, nonpartisan educational organization dedicated to enhancing independent oversight of government and corporate wrongdoing. Foster was previously chief investigative counsel to then-Senate Judiciary Committee Chairman Chuck Grassley (R-IA) and spent 22 years as a congressional investigator.

The views expressed in this article are the writer's own.