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Open records laws becoming vehicle for harassing academic researchers, report warns

The electronic age of communication is making it easier for activists, companies, and lobbying groups to use state open records laws—designed to promote transparency—to harass academic researchers they disagree with, a scientific integrity group warns in a new report. The findings underscore the need for states to revisit how the laws are implemented and for universities to clarify how they balance privacy, transparency, and academic freedom in responding to requests for e-mails, letters, and other documents, the report argues.

“[I]ndividuals and well-heeled special interests across the political spectrum are increasingly using broad open records requests to attack and harass scientists and other researchers and shut down conversation at public universities,” warns the report from the Union of Concerned Scientists (UCS), which was unveiled today at a session of the annual meeting of AAAS (which publishes Science) in San Jose, California. It documents numerous examples of university researchers becoming engaged in often lengthy and complex battles with outside groups requesting internal records.

But that doesn’t have to happen, concludes the report, authored by Michael Halpern, a program manager for strategy and innovation at UCS’s Center for Science and Democracy in Washington, D.C. “If lawmakers, universities, and researchers develop a shared understanding of what they should disclose and a system for proactively doing so, they can avoid costly and time-consuming lawsuits and other battles,” it states. “And that, in turn, will allow researchers to get back to what they are supposed to be doing: learning more about our world.”

At issue are federal and state laws, often modeled on the federal Freedom of Information Act (FOIA), that allow the public to request the disclosure of documents related to government-funded activities, including university research. The laws typically exempt many types of information, such as proprietary data and information that would violate privacy, from requests. Journalists, activists, and others routinely use the laws to request documents that shine a light on potentially troubling issues, including mismanagement and financial conflicts of interest. The laws have also been used by an array of groups troubled by the policy uses of certain kinds of science, including research into water and air pollution, climate change, genetically modified foods, and gun violence.

UCS says the laws are, in principle, useful for promoting transparency and scientific integrity. But the group warns that unfettered open records requests can have an ill effect by threatening researchers’ privacy and discouraging the candid discussions that occur during the scientific process. And anecdotal evidence suggests that electronic record keeping, which has increased the paper trail left by scientists, is making it easier for members of the public to file overly broad and burdensome requests, the UCS report finds.

“These companies, organizations, and activists may disagree with researchers’ findings or even dislike an entire field of study,” it states. “They request all materials on a topic in a university’s possession, including researchers’ draft papers, emails, and even handwritten notes. This strategy can curb the ability of researchers to pursue their work, chill their speech, and discourage them from tackling contentious topics.”

Prominent examples in recent years include a widely publicized 2010 attempt by former Virginia Attorney General Kenneth Cuccinelli, a Republican, to obtain documents from climate scientist Michael Mann from the University of Virginia. Cuccinelli, a self-avowed doubter of climate change, had subpoenaed the university for the records under the state’s Fraud Against Taxpayers Act.

When the state’s highest court rebuffed that effort, conservative groups led by the American Tradition Institute (ATI) tried obtaining the records under the state’s open records laws. The university and Mann ultimately fended off that effort, with a state court ruling that the university could withhold certain records if disclosing them would hurt university research efforts, damage faculty recruitment, violate privacy and confidentiality, and impair free exchange of ideas. ATI, now called the Energy & Environment Legal Institute, has since expanded its open records push by targeting climate researchers in other states, including Arizona, Alabama, and Texas, the UCS report notes.

In another example, the Highland Mining Company in 2012 filed open records requests seeking raw data, documents, and peer-review comments on the work of Michael Hendryx, formerly of West Virginia University and now at Indiana University, “who had investigated connections between mountaintop removal mining and adverse health effects such as cancer,” the report states. When the university refused to provide all requested documents, the company took it to court, but the court sided with the university.

One pattern emerging from case studies examined in the report is a lack of consistency in how officials at public universities respond to open records requests, UCS concluded. “Although some are pushing back, universities and researchers are often unprepared to respond appropriately, partly because laws and privacy protections vary by state,” the report says.

For example, when the environmental group Greenpeace sought e-mail correspondence and other records on the work of climate skeptic David Legates, “University of Delaware officials seemed confused about how best to respond” under the state’s open records laws, the report notes. Citing testimony by Legates to a Senate panel, the UCS report says it took “more than four years of inconsistency and confusion before the university determined that it had no records to supply in response.”

Many scholars want university governing boards to clarify their policies and procedures on open records requests, the report notes. Academic institutions and lawyers should also develop strategies on how to respond to overly broad requests, UCS argues, and should disclose to the public their general approach for responding to open records requests.

On the policy side, UCS suggests that state lawmakers revisit their open records laws to “ensure that they include appropriate exemptions but are not so broad as to compromise accountability.” And the group urges the National Academy of Sciences and other research organizations to give lawmakers and universities guidance on how to determine which materials need to be disclosed.

Check out our full coverage of the AAAS annual meeting.

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