The P2P process is winding down, with the final report scheduled to be published on June 16th. The public comment saga has not been resolved, and the truth of what happened is buried in typical bureaucratic responses.
As I have previously documented, the NIH Office of Disease Prevention’s first release of P2P public comments pursuant to a FOIA request was woefully incomplete. When I brought this to NIH’s attention by filing a FOIA appeal, ODP discovered that “one set” of comments had been “misplaced.” ODP corrected the error by providing those comments to the P2P Panel and also giving them time to further revise the report if they wished to do so. However, the second FOIA release was also missing comments, and I continued my appeal. The Office of the Inspector General declined to act on my complaint, and NIH’s Office of Management Assessment has reportedly told ODP that their public comment process complied with NIH policy and federal regulations.
Last week, the FOIA office released another set of documents, consisting entirely of comments and questions submitted by the public during the December 2014 P2P meeting. The release did not include the six missing public comments I had identified, nor any other missing comments. To their credit, the FOIA office provided me with a detailed description of the multiple document searches undertaken by ODP. Those searches have been thorough, but the search results do not line up with the rest of the facts.
The letter identified four comments contained in the P2P Library on this website which ODP has no record of receiving: Friedman, Sean, Green and Edsberg. Dr. Friedman’s comments were sent directly to P2P chairman Dr. Carmen Green, so it follows that ODP would have no record of his comments. Sean’s comments were actually included in the second FOIA release (so I have no idea why ODP would claim they have no record of it). H.I. Green’s comments were sent by regular mail. Given that ODP has no record of receiving it, we have to wonder if other comments were submitted by regular mail and not logged by ODP. There is no explanation for why Edsberg’s comments were not received by ODP since they were emailed to the correct email address: prevention @ mail.nih.gov.
However, there are four additional comments missing from the FOIA releases: Fero, Moore, Patton, and Heppner. NIH did not state there was no record of these comments, but none of these were included in the FOIA releases. I spoke with the NIH FOIA office and brought this to their attention. After further discussion with ODP, they sent me a letter stating “NIH neither confirms nor denies the existence of any responsive records because their identities as commenters are protected from release” pursuant to the privacy exemption under FOIA. That sounds like NIH is saying they received those four comments, but NIH has not included them in any of the FOIA releases.
So here is the contradiction: NIH states the searches have been adequate. NIH identified by name the comments they did not receive (Green and Edsberg). NIH refuses to identify by name four other comments, which implies that NIH received them. But those four comments were not included in the FOIA releases, suggesting that NIH does not have them. Which is it? If the search and FOIA production are complete and accurate, then we have at least six comments that were not sent to the P2P Panel. Either that, or the comments were sent to the Panel, in which case the FOIA production is not accurate. It can’t be both.
Given the imminent release of the Panel’s report, I proposed a solution to Dr. David Murray, Director of ODP. Rather than continue to go around in circles about this, I suggested that a caveat be added to the Panel’s report, both in the Annals of Internal Medicine and the online version. Specifically, I suggested that the caveat state: “Due to administrative error, several public comments were not provided to the panel prior to the finalization of this report.” This would maintain transparency and accountability for the error, but also convey the scale of the error and allow publication to proceed.
Dr. Murray responded: “We are confident that all of the comments that we received from the public, either during the meeting or during the public comment period, were shared with the panel and were considered by the panel in developing their final report. As such, we will go forward as planned with the release and publication of the final report on June 16.”
So we are left with a number of questions: Did ODP receive the four comments missing from the release? Were all the comments sent to the Panel? Are there other comments not submitted to the P2P Library that were lost by ODP? We can’t answer these questions, and NIH’s answers still don’t match up with the documents released.
The final P2P report will be published on June 16th (and there will be a telebriefing that day). How many changes did the Panel make to its draft? Will the report reflect the input of the public comments? And the biggest question of all: what will NIH do in response to these recommendations?