NIH email scandal: A ‘shocking disregard’ for public record-keeping or within federal rules?

Allegations that top officials at the National Institute of Allergy and Infectious Diseases sidestepped public records laws have revived attention on the complicated but consequential rules governing federal emails. 

During House Oversight Select Subcommittee on the Coronavirus Pandemic hearings featuring testimony from Dr. Anthony Fauci, former director of the National Institutes of Health subagency, and senior adviser David Morens, emails were cited in which some agency officials may have tried to evade the Freedom of Information Act.

In a message sent from his personal Gmail account, Morens referenced deleting emails and communicating with a colleague about how to make emails “disappear.” In one message uncovered by the subcommittee, he wrote that his NIH email “is FOIA’d constantly…Don’t worry, just send to any of my addresses and I will delete anything I don’t want to see in the New York Times.”

The allegations against Morens raise questions about the extent to which he was complying with rules about government emails. The incident exemplifies ongoing concerns about the gap between records preservation policy and enforcement — and also comes after controversies over the preservation of other federal officials’ electronic communications.  

A spokesperson for the Department of Health and Human Services, under which NIH and NIAID operate, said the agency doesn’t comment on personnel matters but noted that “HHS is committed to the letter and spirit of the Freedom of Information Act and adherence to Federal records management requirements. It is HHS policy that all personnel conducting business for, and on behalf of, HHS refrain from using personal email accounts to conduct HHS business.” 

According to a letter from select subcommittee Chairman Brad Wenstrup, R-Ohio, NIH told the National Archives and Records Administration in August that it did not find evidence that federal records within their custody were destroyed prematurely. That August letter, apparently sent by Anthony Gibson, NIH’s records officer, to the chief records officer of NARA, does not appear to be public. 

A NARA inquiry initiated last year into the incident remains in the “Pending review/follow-up” stage, according to data tracked by the National Archives. 

Jason R. Baron, a University of Maryland professor who previously served as the director of litigation for NARA, called Morens’ actions a “shocking disregard for the public’s right to access records under FOIA, as well as government recordkeeping in general.” Baron, a member of the FOIA advisory committee, said the case typified an instance where NARA would be responsible for following up with NIH to recover any records, and either of those agencies could then refer their findings to the DOJ for a lawsuit to, again, try recovering records.

According to NARA data, accusations of mishandling government records aren’t uncommon — and the agency can review claims relatively quickly. For example, a case involving the Department of Agriculture that reported records destroyed “because off [sic] black mold” was closed in just under a month after it was reported to NARA. Others can take over a year to resolve, such as a case involving the National Oceanic and Atmospheric Administration that reviewed allegations over the unauthorized deletion of records regarding a council meeting on fishing industry regulations. (NARA determined that this incident was unfounded and that the agency was in compliance with relevant legislation.) 

“Federal records are either temporary records or permanent records, as determined by an appraisal of the records and documented in a records schedule,” NARA communications staff  said in an emailed statement to FedScoop. “Temporary records are eventually deleted, while permanent records ultimately come to the National Archives for preservation.” 

NARA continued: “Under the Capstone approach, agencies use General Records Schedule 6.1 to manage their email. This records schedule allows agencies to manage email based on the role of the email sender in the agency. The email of senior officials, known as Capstone officials, is permanently preserved. Email of other employees is a temporary record which will eventually be deleted.” 

NARA spells out a series of requirements that could have been relevant in the situation involving Morens. The agency’s universal electronic records management requirements state that employees of executive agencies “may not create or send a record using a non-official electronic messaging account” unless an official account is copied or if the record is forwarded to an official messaging system. 

“Federal employees should use agency accounts for electronic messages — including texts, chats, and emails — when conducting agency business. Personal and non-official accounts should only be used to conduct agency business in exceptional circumstances,” states NARA. 

Not following these procedures can be the basis of disciplinary action, according to the U.S. Code, which governs the unlawful destruction, alteration or removal of federal records and designates reporting procedures for NARA when credible information about a potential incident is received. The National Archives, which also manages guidance on transfer of documents, is supposed to contact the relevant agency and can help assist in recovering destroyed federal records, including by contacting the attorney general. The Department of Justice did not respond to a request for comment. 

NARA’s website states that electronic communications, like emails, “created or received in the course of agency business are likely” federal records. 

Notably, even if the official “deletes” the email in their individual accounts, it’s likely that they’re saved through the automated archival process (and then deleted after several years, depending on a predetermined schedule). 

The Morens incident highlights other ways that federal officials can theoretically try to avoid FOIA requests about their electronic communications. It’s not uncommon for FOIA officers to encourage requesters to share specific keywords in order to conduct records searches. But emails from Greg Folkers, Fauci’s former chief of staff at NIAID, included misspellings of key terms that individuals might have included in their request for records, such as “EcoHealth” written as “Ec~Health” and virologist Kristian Anderson spelled as “anders$n.” A Republican-led group of legislators has charged that the misspellings were intentional. 

During a subcommittee hearing, Fauci stated that he did not engage in attempts to obstruct the FOIA process or the release of public documents, nor did he communicate official business with Morens using private email addresses or encourage Morens to use his private email address for official business. Wenstrup, the Ohio Republican and subcommittee chair, has requested access to Fauci’s private emails. 

In addition to Baron, two other members of the FOIA Advisory Committee told FedScoop the incident raises critical issues about the gaps in promoting the values of FOIA — at least in regard to email communication. 

“It sounds like a pattern and practice of avoiding [FOIA] combined with records destruction — and that’s scandalous if that’s true,” Alex Howard, who directs the Digital Democracy Project,  said in an interview with FedScoop. “If that exists today in an agency as the conditions under which they’re dealing with that law, that should be held up as an example of what not to do.”

Similarly, Gbemende E. Johnson, a University of Georgia political science professor who also works on the FOIA Advisory Committee, noted that “incidents of improper record preservation would suggest at the very least that additional training and reminders of the legal obligations of [the Federal Records Act] and FOIA are necessary.” 

A bipartisan Senate bill to modernize federal records law covers some notable ground, Johnson noted. The legislation from Sens. Gary Peters, D-Mich., and John Cornyn, R-Texas, would update federal records law to account for electronic communications, including messaging apps, improve records management compliance, and create an advisory committee to consider how emerging technology could improve record management.

Baron, the former NARA litigation director, said “the law as it presently stands relies on the good faith of federal officials to manually forward or copy to a governmental account any communications about government business that they make on Gmail or [another] messaging or texting ‘app.’ There should be easier, automated means to do so.”

Madison Alder contributed to this article.