NIOSH Too Slow Answering Simple FOIA

Several months ago, I tried to get a simple question answered by NIOSH about part of its process for awarding mine safety research grants.  The technical staff with whom I spoke probably knew the answer to my question, but they weren’t sure whether the information could be disclosed or not.  Fair enough.  They suggested that I file a FOIA request which I promptly did.  More than 4 months later, I’m still waiting for an answer. 

Granted, this is nowhere near the worst FOIA performance (see annual Rosemary Award), but my question to NIOSH was straightforward, and I guarantee they have at least one document which would be responsive to my request.

What was my question?  I asked for the names and affiliations of the individuals who served on NIOSH’s technical review panel(s) evaluating certain mine safety grant proposals.

You may recall after the needless deaths of coal miners at the Sago, Darby and other disasters, Congress was compelled to provide R&D funds for projects related to underground refuge chambers, oxygen supplies, and communication and tracking equipment.  In fall 2006, NIOSH received $10 million in emergency supplemental funding ”for research to develop mine safety technology.” 

When the Aug. 2007 Crandall Canyon catastrophe occurred (and like the situation at the Sago mine, there was no way to communicate with or locate the trapped miners) I wondered what happened to that special $10 million appropriation.  I learned that by late July 2007, NIOSH had awarded most of the money, but to my surprise, nearly $5 million went to just one firm: the SYColeman Corporation.  This company was selected by NIOSH for 2 of the 3 awards for communication and tracking systems.  The SyColeman website doesn’t provide much practical information about their expertise, but suggests they are quite successful at securing federal contracts especially from the Departments of Defense and Homeland Security.  The Center for Media and Democracy’s SourceWatch says the firm:

“was one of three companies the Pentagon contracted to improve the perception of the United States internationally through a new ‘psy-ops’ campaign. The contract for each company…[was] worth up to $100 million.”

Again, this doesn’t tell me much about their ability to develop equipment for underground miners, but maybe says something about their skill preparing successful proposals for federal government contracts.

Through my work with Davitt McAteer on the Sago investigation, I came to meet dozens of manufacturers, professional designers, and back-yard tinkerers with all kinds of ideas to improve communication for and tracking of underground miners.  A few months after the Sago tragedy, we made an open invitation to all of them to display their technology or present their ideas at a symposium in Wheeling, WV.  It was inspiring to see all the inventors and entrepreneurs gathered at small booths, very eager to talk about the potential of their products and ideas to assist trapped miners.  There were one-man operations and more established companies—but no SYColeman in the bunch

Whether large or small, nearly every one talked about watching the Sago rescue efforts play out on national TV, and becoming anxious or frustrated knowing that they had technology or equipment that might be applied in the mining environment.  After the symposium, a number of these entrepreneurs and others coordinated with MSHA and NIOSH to try out their equipment underground.  [Descriptions of these in-mine tests are here and here.]  Then this past summer, when six men were trapped inside the Utah Crandall Canyon mine, Davitt McAteer convened an impromptu on-line chat, through Wheeling Jesuit University, with anyone interested in discussing communication technology for underground miners.  Firms including InSeT Systems, Matric Systems, emenu, Inc., Active Control, Workhorse Technologies, and Mine Site Technologies participated, but again, no one from the SYColeman company.

So, when I learned in mid-August 2007 that the SYColeman company had received nearly half of NIOSH’s special pot of $10 million, I wanted to see their proposal and compare it to the other proposals received.  Some of the “losing” proposals were submitted by some of the small companies mentioned above, who had demonstrated a sincere interest in helping advance communication systems for underground miners—even when federal funds had not yet been offered.  I figured that a large firm like SYColeman probably has experts who write dozens of federal funding proposals and when I compared their proposal side-by-side to the others, I would understand how NIOSH selected them.  One of my FOIA requests, therefore, asked for a copy of the 10 proposals received by NIOSH for the underground miners’ tracking system.  [The agency ultimately selected SYColeman ($2.13 million award) and Extreme Endeavors & Consulting ($813,000) for their proposals. (more here) ]

I also realized, however, that NIOSH might not release these proposals because they may contain proprietary information; I wanted to know at least who reviewed and scored the submitted proposals.  I was told by the NIOSH technical staff that a “technical review panel” evaluated the proposals and members of this panel were not exclusively government employees.  Learning this, it seemed reasonable to ask who were the non-government members of the panel, and did they have any bias or potential conflicts of interests which may have influenced their evaluation of the proposals?

It is this FOIA request  —-for any record listing the names and affiliations of technical review panel— about which I criticize NIOSH for taking too long.   I’d think there were probably just a few people at NIOSH who staffed the technical review panel and surely they have a list of its members.  Why does NIOSH need more than 4 months (so far) to respond to this simple request?

Perhaps a clue comes in the acknowledgement letter I received on CDC letterhead.  I sent my FOIA request directly to NIOSH, but it appears to have move up into the HHS bureacracy to the Department’s Freedom of Information Act Office, within the Office of the Chief of Staff.  It says:

“Your FOIA request has been received by CDC/ATSDR and has been sent to the area(s) which may have pertinent records.”

If my simple question to NIOSH has to be processed through all of CDC Director Julie Gerberding’s bureaucracy, I’ll probably be waiting another few months for an answer.  It’s like sending an inquiry to the produce guy at your local grocery store and it’s sent to some out-of-town corporate honcho for a response.  What an absurd control of information.

With new FOIA amendments signed into law and scheduled to take affect by the end of this year, I hope that senior federal agency officials everywhere are compelled to review the law’s history and Congress’ intent with respect to the public’s right to government documents.  Just in case any of them are reading The Pump Handle, the law’s purpose was:

“to establish a general philosophy of full agency disclosure unless information is exempt under delineated language.”*

And as President Lyndon Johnson stated when he signed the original FOIA in 1966:

“No one should be able to pull the curtains of secrecy around decisions which can be revealed without injury to the public interest.  I…signed this measure with a deep sense of pride that the U.S. in an open society in which the people’s right to know is cherished and guarded.”**  



*O’Brien DM. The Public’s Right to Know: The Supreme Court and the First Amendment. New York: Praeger Publishers, 1981, 7.

**Sherick LG. How the Use the Freedome of Information Act. New York: Arco Publishing Company, 1978, 7.