NATIONAL SCIENCE FOUNDATION OFFICE OF INSPECTOR GENERAL OFFICE OF INVESTIGATIONS CLOSEOUT MEMORANDUM Case Number: A10110086 Page 1 of 1 We received an allegation that a former Program Director (the subjectl), who was temporarily employed by NSF through the Intergovernmental Personnel Act, shared a variety of confidential documents (proposals, reviews, and annual reports) with her laboratory colleague. Our investigation found evidence supporting the ~ allegation. Because her former Division2 and the subject were considering her return to NSF; we recommended the Division consider under what conditions she could return and prohibit her from serving as a reviewer for 3 years. The Division: will not offer the subject a position as Program Director, will not use her as a reviewer or panelist for 3 years, and will emphasize the importance of the confidentiality of information in its annual training. Accordingly, this case is closed with no further action taken. Our report, the Division's decision, and this Closeout Memorandum constitute the documents for the case closeout. I [redacted] 2 [redacted] NSF OIG Form 2 (I 1102) l·-· .. - • - > ~li .•'"'_.., $. National Science Foundation 4201 Wilson Blvd Arlington, Virginia 22.230 703-292- March 5, 2012 To: William Kilgallin, Acting Assistant Inspector General for Investigations From: Subject: Response to the report of investigation (OIG Case No. Al0110086) ·Thank you for communicating the Investigation Report. After considering the report, the Foundation agrees with the OIG recommendation and will/have taken these actions in response: • After··· was interviewed for an IPA position, the response from the Division staff was negative. Before the Division conveyed its decision not to invite her back as an IPA, she withdrew her candidacy temporarily. The Division has no plans of offering her an IPA position as a program director. • The Division will not use as a reviewer or a panelist. To implement this plan,···· status has been changed to 'prohibited'. This will forbid the program directors from selecting. - a s a reviewer or a panelist. The reviewer prohibition will be enforced for three years and the Division will work with DIS at that time to remove the prohibition. • In its continuing efforts to provide training for the rotating program directors, the Division will emphasize the confidentiality of information annually (in addition to mandatory conflicts training). Through these periodic reminders, we hope to avoid such situations in the future. Please let us know if any additional actions are necessary. cc: Cora Marrett, Deputy Director, NSF Allison Lerner, Inspector General, NSF Gene Hubbard, Head, OIRM · lawrence Rudolph, General Counsel Clifford Gabriel, OD liaison to OIG CONFIDENTIAL National Science Foundation . ,, Office of Inspector General Confidential Report' of Investjgation Case, Number /A-10110086~ 8 February 2012 This Confidential Report of Investigation is provided to you FOR OFFICIAL USE ONLY. It contains protected personal information, the unauthorized disclosure of which may result in personal criminal liability under the Privacy Act, 5 U.S.C. § 552a. This report may be further disclosed within NSF only to individuals who must have knowledge of its contents to facilitate NSF's assessment and resolution of this matter. This report may be disclosed outside NSF only under the Freedom of Illformation and Privacy Acts, 5 U.S.C. §§ 552 & 552a. Please take appropriate precautions handling this confidential report of investigation. CONFIDENTIAL CONFIDENTIAL Executive Summary We determine, based on our investigation, that a former Intergovernmental Personnel Act (IPA) employee (the Subject)l removed confidential NSF documents from NSF and distributed them to a colleague. When questioned, the Subject displayed a lack of candor, changing her account to fit the facts. We understand the Subject was copsidered earlier this year to return to NSF as a Program Officer. We recommend NSF: 1) consider what actions to take to protect the integrity of its operations and consider under what conditions, if any, it would permit the Subject to return to NSF in a trusted position such as Program Officer, reviewer or panelist; and 2) prohibit the Subject from serving as a reviewer or advisor for 3 years. OIG Investigation A. Background We received an allegation that the Subject retained 17 confidential NSF documents at the end of her IPA term,2 arid she took the documents back to her home institution (the University), where she handed the documents to a colleague, 3 saying the documents would be helpful for their research. The documents were forwarded to NSF OIG as part of the complaint. The 17 documents4 we received consisted of 6 proposals 5 (both declined and awarded), 5 reviews,6 a panel summary, 7 and 5 annual reports.B The existence of declined proposals, reviews, and a panel summary are particularly concerning because those documents would not be released through a Freedom of Information Act (FOIA) request. . .· . . · . We verified that the Subject was a Program Director at NSF for approximately 19 months9 and; thus, had access to proposal documents in NSF's programmatic databases. The Subject was assigned to handle all but one of the proposals and accompanying d9cuments at issue. We confirmed with NSF's FOIA Officer, that the Subject had made no FOIA requests, so she had no authorized or 1 [redacted] was an IPA rotator from [the University], where she is a professor of [redacted]. 2 IPA's are considered employees of a federal agency for a number of purposes including, the Ethics in Government Act of 1978, and executive, orders (See 5 U.SC. §3374 (c)(2) and (c)(3)). 3 [redacted] worked in the Subject's laboratory at the University. He said he put the documents on his desk and forgot about them. When he and the Subject had a falling out approximately 1 year later, she had him moved out ofher lab. When he was moving, he rediscovered the documents ahd provided them to OIG. 4 Tab 1 contains copies ofthe documents the Subject took froni·NSF. 5 [redacted]. 6 All reviews were of [redacted]. 7 The panel summary was for [redacted]. s [redacted]. , 9 The Subject was in [redacted] from [redacted] via IPA grants to the. University-[redacted] totaling $254,223. · 1 CONFIDENTIAL CONFIDENTIAL permissible right to have the documents once her employment at NSF ehded. There seemed to be sufficient information to warrant interviewing the Subject. B. Subject Interview I We interviewed the Subject at the UniversitylO regarding the 17 documents.ll \ The Subject confirmed she had received training while at NSF about the confidentiality of proposals. and the processes of working with them. Although she had an NSF computer, she often· used her personal laptop to work with NSF proposals so she could conduct NSF work while travelling and while at the University.l 2 She estimated she spent 20% of her time at the University, so she downloaded a substantive number and variety of NSF documents to her laptop, and also sent emails from her NSF account to her University account to facilitate access to those documents. She stated she sporadically backed up her laptop to an external hard drive before travelling. She offered that her colleague had access to the external hard drive, and she believes he took advantage of that access to steal the documents, print them out, and provide them to us; all while claiming she stole them from NSF and gave them to him.l3 The Subject said she trusted her colleague and gave him complete access to her office, her email accounts, and her computer by providing him with the necessary passwords. She did not provide him with access to her NSF accounts. She said the hard dr~ve she used to backup her laptop was provided to her by her colleague, and he also set up her computer to do backups to the hard drive. She said she did not specify what material from her laptop should be backed up, so she backed up everything, including all the NSF documents she had downloaded. The Subject said her colleague took random proposals from the hard drive, printed them out, and provided them to us to make her look bad. She reiterated that she routinely downloaded any information she needed or was working on onto her laptop; she did not select particular. documents to download. She never deleted any of the NSF documents from the laptop or the hard drive either during her tenure at NSF, or after s.he left NSF, because she was too busy. When asked about the specific documents at issue, the Subject provided several reasons for downloading them, including: • one proposal was the last grant she funded (it was a 'sw~eper', i.e., funded from funds swept up near the end of the fiscal year) 14; and 10 One of our team was on-site; two others participated in the interview via conference call. u Our summary of this interview is Tab 2. 12 The Subject regularly returned to the University per her IDP. 13 The Subject and her colleague had an acrimonious falling "out following her return to the University. 14 [redacted] 2 CONFIDE~TIAL CONFIDENTIAL •one that was funded with:ARRA funds for which spe wrote a review analysis 15 . Regarding the proposal that was not assigned to he:1;, 16 she stated she was considering using the PI on a panel, so she wanted to review that proposal to ascertain his appropriateness for the panel. The Subject said since the proposals were not related to any of her research, she did not benefit from having them. We asked to review files on the Subject's laptop to verify her statements, and ' 17 she agreed. Our search was unable to find any NSF documents on h er 1aptop. The Subject then said she was not using the same laptop that she used while at NSF ,18 and she must not have transferred all the files from her old laptop ' before giving it to her daughter. The Subject elected not to provide an affidavit. C. Post interview Investigation: . ' ' - After our interview of the Subject, we reviewed the documents we received to verify the 'Subject's explanations. We determined four of the six proposals had a bar code and a statement that they were "Printed by NSF PPU" 19 oh the cover page. We asked staff of the PPU about the bar code; and it said, historically, 20 PPU provides the official jacket copy .of the proposal to --the program staff using its logging software that creates the barcode and prints it on the cover page. with other information. ··This barcode exists· only- on the hard copy proposals printed by the PPU-.it does not exist on the cover page of proposals uploaded to or printed frorn eJ acket, and PPU does not provide the program staffwith an electronic version of a proposal with the· barcode on 1it. If a proposal has a bar ·code, that rneans it was physically printed at NSF by the PPU, not printed from eJacket. Consequently, the· proposals with the barcode could not have 'been downioaded from eJ'acket to het laptop as the Subject had indicated. Thus, her colleague could not have stolen thern or printed them from her hard drive. Therefore, we concluded the Subject's explanation of how her colleague came to po-sse·s four of the six proposals was inconsistent with the facts. li We then examined the reviews we had received. We noted a series of em ails containing reviews of proposals were on paper tnat had been 3-hole punched as if they had been in a notebook. Again, this is inc<;msistent with the _Sp.bject's explanation of how she worked utilizing electronic documents. We also noted the documents did not appear randomly selected by her colleague as the Subject suggested. As noted in Tab 1, and from footnotes 4-7, all of the reviews and the 15 [redacted] 16 [redacted] . . . _ 17 We searched for several of the proposals at issue, but did not find any of them. We searched in general for any NSF documents, but could not.find any. 18 She later indicated that it was the same laptop' as she had used at NSF. 19 PPU is an abbreviation of NSF's Proposal Printing Unit. 20 Since the official record is now electronic, the PPU prints proposals only upon request. 3 CONFIDENTIAL CONFIDENTIAL panel summary were for one of the proposals, 21 and two of the annual reports were for two of the proposals, suggesting a more focused selection. ·' Based on our review and the noted inconsi_stencies, we dE~termined that we needed to speak to the Subject again. D. Subject Interview II We notified the Subject that we had additional questions, and she agreed to meet with us again to clarify her answers. 2 2 Since the Subject was considering returning to NSF- as a rotator, she had a planned trip to NSF for an interview with the program office; she came to our conference room after her meetings with NSF. We began the interview by asking that she provide a timeline of events. The Subject again described her use of her university laptop to download NSF documents, but at this juncture, she recalled she had backed up her laptop to two different hard drives, one of which stayed at the University, while she travelled with the other one; which she brought to NSF. We asked again if the Subject gave her colleague any NSF documents; she said no. She revised her previous statement about her laptop, and stated that she is still using the same laptop she used while at NSF. We asked her to explain why we had not been able to find any NSF documents on her laptop, the same laptop onto which she told us she had downloaded documents while at NSF and from which she claimed not to have had time to delete files. She reiterated that her colleague had access to her computer and suggested he may have deleted all the NSF files from her laptop and hard drives. She again stated that one of the hard drives had disappeared from the lab shortly after her return to the University from NSF. Furthermore, she said some of the documents may never have been backed up anyway because she was not in the habit of doing back-ups. When we initially asked the Subject if she kept a notebook with proposal information while she was at NSF, she said no. However, when we showed her email printouts with her name at the top and three holes punched in the sides, she then said she kept notebooks· with documents in it that .she used to review proposals. In fact, she stated' she kept a notebook for every p~oposal· that was reviewed by a panel. The notebooks were generally recycled after the panel review. The Subject recalled working on the review analysis for one proposaJ23 at the University, so she must have left it in her university office, which is from where her colleague must have stolen it. When reminded that she previously told us she only used electronic documents to review proposals, she said she could not describe all her review prac~ices. 21 [redacted] 22 Our summary of this interview is Tab 3. 23 Recall all the reviews were for [redacted]. 4 CONFIDENTIAL CONFIDENTIAL We showed the Subject two copies of a proposal cover page, one with the bar code and another printed from eJacket (without the bar code). We explained PPU's function, and that bar coded proposals were printed at NSF. The document we received could not have been printed from an electronic copy, so her statement- that her colleague randomly selected it from either her laptop or the hard drive and printed it--could not be true. Contradicting her previous account, the Subject now recalled taking the PPU paper versions, along with many other paper documents, to the University to work on her reviews. In fact, she spread the documents out all over her desk and worked on them. She was often in a hurry, so she left the paper documents on her desk when she returned to NSF. She indicated she did not shred the NSF documents or otherwise dispose of them. She sometimes put the NSF documents in an unlocked cabinet in her office if she had time. She said the colleague probably came into her office and took the documents from her desk or out of the cabinet. She admitted to being careless with these documents, but said she had no reason to give her colleague any of them. She said many rotators took proposals and reviews home.24, 25 E. An aggravating factor As a part of our investigation, we learned that t~e Subject's sharing of NSF documents was not an isolated event. Previous~y, the Subject, an editor at a journal, 26 inappropriately distributed· a confidential document submitted to the journal for review. We asked the Subject about this incidentin the first interview, and she explained that she received a manuscript to handle as editor. She thought she had a potential conflict of interests with the manuscript because the authors were competitors doing similar research. To assist her in determining whether she had a conflict, she gave the manuscript to her colleague and asked his opinion. They agreed they had a conflict, and she informed the other editors at the journal that she could not do the review. Her account differs from the accounts of both the colleague and the chief editor of the journal, whom we also interviewed. Each stated that after the Subject disclosed a conflict with the manuscript to the journal, she then distributed the manuscript to her lab group (the colleague and another researcher). The chief editor said when he questioned the Subject about the incident, she acknowledged . 24 We asked the Subject if she could identify any other rotators who routinely took home documents and whether any of them also distributed such documents to their colleagues. She identified one former rotator as someone she knew took home proposals. We interviewed the identified rotator, and learned she occasionally took home proposals, but she stated she was very careful to safeguard them. She knew staff were not to keep proposals and always brought them back to NSF for shredding. She thought only rotators did this: permanent employees were at NSF all the time, so had no home institution to take them to. 25 Shortly after the second interview, the subject provided her version of events and a chronology; Tab 4. . 26 [redacted] 5 CONFIDENTIAL CONFIDENTIAL the inappropriate distribution and apologized for her lapse in editorial judgment. The accounts provided by the colleague and the chief editor are similar but diverge from the account provided by the Subject during her interview: F. Applicable NSF Policies 1. NSF Conflict of Interest Manual NSF expects its employees to adhere to NSF rules of behavior, which include following NSF's conflicts of interest and ethical conduct policies about which NSF requires it employees to attend annual training. The Subject attending training twice during her tenure at NSF: "New Program Officer" training and "Post- Employment" training.27 ·a. Use of information obtained while at NSF NSF's Conflicts of Interest Manual prohibits employees from misusing inside information stating "If your Government job gives you access to information not generally available to the public, you must not use that information for your private benefit or make it available for the private benefit of any other person or institution." 28 Absent a FOIA request, the information available to the public is limited to the abstracts. of funded proposals. Available documents do not include declined proposals, reviewer notes, or annual reports. b. Safeguarding NSF documents Similarly, NSF policy prohibits the misuse government property, including NSF records, stating: "You should protect and conserve Government property 29 and you must not use it, or allow its use, for unauthorized purposes." 30 Employees are also expected to protect any documents that are government property against use for unauthorized purposes. During her second interview, the Subject said she left NSF documents spread on her desk at the University, a place to which others had access. The information that the Subject had access to while working at NSF, such as declined grant proposals, emails, and panel notes, would not have otherwise been available to. the public. These materials are not subject to disclosure under FOIA and would not have been made available outside NSF. The Subject took these 27 The Subject took "New Program Officer" training on [redacted] and "Post-employment" training on [redacted]. 28 Conflicts of Interest and Standards of Ethical Conduct Manual, Part V, § 54(a): No misuse of inside information. If your Government job gives you access to information not generally available to the public, you must not use that information for your private benefit or make it available for the private benefit of any other person or institution. 2 9 Conflicts of Interest and Standards of Ethical Conduct Manual, Part V, § 56(c): Government property includes office supplies, Government mail and phone services, computers, copying equipment, records, vehicles, and the like. 30 Conflicts of Interest and Standards of Ethical Conduct Manual, Part V, § 56(c): Mis~se of Government property. 6 .,. CONFIDENTIAL CONFIDENTIAL mat~rials with her to the University and either directly transferred thein to her colleague or failed to properly safeguard them. In either case, her actions allowed him access to materials that he could have used to benefit his own research. The Subject's actions do not conform to NSF's policy of safeguarding information that is not publicly available. Transferring these materials to a colleague who· would not otherwise have had access to them is also unauthorized use of such documents. The Subject's actions therefore violate two of NSF's Conflicts ofinterest anq St~ndards of Ethical Conduct Manual's policies. 2. NSF's Proposal and Award Manual (I>AM) The NSF PAM has specific policies governing the handling. of documents connected with unfunded NSF proposals and their removal from NSF premises. 31 NSF employees including IP As32 are responsible for fecognizing and protecting sensitive information33 and avoiding inappropriate access, use, or disclosure of sensitive information. 34 Sensitive information includes proposal jackets, personnel files, log files, e-mail, and correspondence files, among others. Sensitive records and files must be physically secured against unauthorized use and excess copies should be destroyed according to agency policy. Additionally, "[p]ersonnel should use caution when storing electronic files on public drives or allowing 'shared' access to personal hard-drives or when storing or transporting information in electronic form on removable media and portable/mobile devices such as laptop computers and/or personal digital as·sistants."35 Further, NSF staff should use care in the handling, distribution, and disposal of records or electronic files that may contain sensitive data. Sensitive records and files should be physically s~cured against ti.nauthorized access, use or disclosure. · In this case, the unfunded proposals· and associated reviews the Subject removed from NSF constitute sensitive data, which she had an obligation to protect. Thus, these documents should have been secured· against unauthorized use, whether by shared hard drive·, cloud ,comp:uting/drop box or~ physical acces~ to the hard copies. By not taking appropriate action to safeguard these sensitive 3I Proposal and Award Maimal, NSF Man~al #10, Chapter XI, sec. (A)(1) (Nov., 2007). NSF employees (and authorized NSF contractors) may, in the course of performing their official duties, have a wide variety of sensitive information about individuals avaiiable to them electronically and in hard copy. Sensitive data includes unfunded proposals, proprietary parts of funded proposals, reviews, reviewer identity tied to reviews, Social Security Numbers, date and place of birth, demographic data, home addresses/telephone numbers, .bank account nu:inbers, and other similar information. Most of this sensitive information is maintained by NSF in systems of records protected under the Privacy Act including proposal, PI and Reviewer flies. , Internal access to these sensitive records is restricted to personnel who require the information in the performance of their official duties. NSF staff should use. care in the handling, distribution, and disposal of records or electronic flies that may contain sensitive data. Sensitive records and files should be physically secured against unauthorized access, use or disclosure. 32 NSF Bulletin 08-10, Sec. 2 (May 1, 2008). . ~ . . , 33 "Sensitive data" includes unfunded proposals and proprietary parts offunded proposals. 34 NSF Bulletin 08-10, Sec. l (May 1, 2008)., 35 NSF Bulletin 08-10, Sec. 4 (May 1, 2008). 7 CONFIDENTIAL CONFIDENTIAL documents, the Subject either allowed another to obtain access through her carelessness, or pro:vided the documents directly to her colleague contra to several NSF policies G. OIG Investigative Analysis ·We received 17 documents that constitute non-publicly-available NSF information and records. These documents are NSF business-sensitive documents ' 16 of which were associated with proposals assigned to the Subject. The Subject acknowledges she removed not just these documents, but many other documents from NSF by downloading them to her personal laptop and, on occasion, to one or more external hard drives, emailing them to her university account, and/or taking hard copies to her university office. After interviewing a number of witnesses and comparing statements from those interviews with facts discovered during our investigations, we have concluded that the complainant is more credible than is the Subject. We believe that it is likely that' the Subject handed the documents to' a colleague. The Subject disputes this scenario. Initially she claimed the colleague either stole the NSF documents from her laptop, using the passwords she gave him, or from the hard drives she used to back up her laptop-a hard drive he owned. However; when she permitted us to search her laptop, we were unable to find ANY NSF documents, documents she stated she had been too busy to delete. Subsequently, when confronted with evidence we had gathered and the fact that her account of events could not be true (because of the PPU barcode), the Subject then suggested an alternate scenario in which she left paper documents either strewn about her desk or in an unlocked cabinet in her University office, from which she claimed her colleague stole the documents. Because the Subject said she was too busy to delete the NSF documents from her laptop, we asked and received permission to look in her laptop for the documents, but she could not find any. 36 We also asked the Subject whether she kept notebooks with proposal-related materials (proposal notebooks) while at NSF. She said no. However when shown evidence to the contrary, she again revised her account saying she did keep notebooks at NSF. In addition to these inconsistencies and revisions, which diminish the Subject's credibility, her explanation of the incidentlwith the journal manuscript is inconsistent with the journal's chief editor and the colleague, whose explanations are consistent with each other. Based on the Subject's many revisions and inconsistencies, we conclude the Subject's explanations lack credibility. 36 She initially told us she had given the laptop she used during her tenure at NSF to her daughter and must not have uploaded all of her NSF documents. Later, the Subject acknowledged that she still uses the same laptop, but could not explain why there were no NSF ftles on it. 8 CONFIDENTIAL CONFIDENTIAL OIG Conclusions The Subject acknowledged she received training that included the sensitive nature of handling confidential documents when she came to NSF to serve as a Program Director. Further Subject does not dispute that she transferred many confidential NSF documents to her laptop, her colleague's hard drive, and her office. She does deny she distributed the documents, instead claiming her colleague stole them either electronically or by taking copies she left in her University office. However, as discussed in our Analysis section, we conclude the Subject's conflicting accounts lack credibility. Additionally, the Subject has, on at least one prior occasion, improperly distributed a confidential document to others in her lab. Thus, we conclude the Subject removed, without authorization, proposals (both awarded and declined), annual reports, reviews, and a panel summary and gave them to her colleague. Subject's Response and OIG's rebuttal In her response to our draft report, 37 the Subject raised many points we addressed j above. We are not going to respond to each of them, however, we respond to the following: · • She said her disclosure of the journal manuscript is not relevant to this matter. We disagree; a prior instance of sharing a confidential document with her lab colleagues is analogous and relevant to our investigation into the sharing of confidential NSF documents. • She said we did not provide her with the basic allegation against her and that caused her to provide what she characterized as irrelevant information-her first version of her work process with electronic documents. Our ' contemporaneous MOis document that we described the allegation to her. It is further supported by her claim that her colleague stole the documents from her. • She suggested our perception of her lack of candor is because she responds poorly to hostile questioning. The Subject was likely uncomfortable when presented with evidence that the initial version of events she provided could not be true. However, given multiple opportunities both orally and in writing to explain what happened she has provided inconsistent responses. In general, the subject's remarks are not supported by the facts presented in the ROI and she provides no new information that changes our conclusion. We find it very telling that nowhere in her response did the Subject deny the allegation was true. Our recommendations stand unmodified. 37 Tab 5. 9. CONFIDENTIAL CONFIDENTIAL ' OIG Recommendations We recommend NSF consider what actions to take to protect the integrity of its operations and consider under what conditions, if any, it would permit the Subject to return to NSF in a trusted position such as Program Officer, reviewer or panelist. The Subject attempted to return to NSF, but temporarily withdrew her application pending resolution of how her return to NSF would affect her daughter's tuition benefit at the University. Although she received training from NSF on handling of NSF's sensitive documents, she disregarded it by, minimally, failing to secure the many documents she electronically or physically transported to the University. Accordingly, we recommend NSF prohibit the Subject from serving as a reviewer or advisor for 3 years because she cannot be trusted to treat proposals confidentially. / 10
NSF Employee Misconduct Peer Review violation
Published by the National Science Foundation, Office of Inspector General on 2012-04-03.
Below is a raw (and likely hideous) rendition of the original report. (PDF)