Transparency is Great, Harassment is Worth Preventing: A Response to Paul Thacker and Charles Seife

August 14, 2015 | 1:46 pm
Aaron Huertas
Former Contributor

*See 8/24/15 update*

Transparency is in everyone’s interest. Harassing scientists is not. So where should we draw the line when politicians use their investigatory powers to target scientists or when corporations and ideological interest groups use open records requests to harass researchers at public institutions?

These are tough questions. Yesterday, Paul Thacker and Charles Seife published a blog post that argued in favor of a simple answer: Don’t draw any lines. Unfortunately, in making their argument, they neglected some specifics and misrepresented UCS’s work.

Open records laws are great and they also get abused to harass scientists

Thacker and Seife focus much of their criticism on a report UCS published last year, authored by Center for Science and Democracy program manager Michael Halpern, which chronicled how politicians, corporations, and interest groups have used open records requests to attack scientists and scientific research.

For example, in the early 1990s, tobacco giant R.J. Reynolds used Georgia’s open records law to demand research records from Paul Fisher, a professor at Georgia Medical College, who published a study on children’s reactions to the Joe Camel mascot. “When Fisher resisted,” Halpern wrote, “the medical college successfully sued its own professor for the documents and sent them to the company. Disgusted, Fischer resigned his tenured position and set up a family medical practice.”

The UCS report includes several others stories like this featuring climate scientists, chemists, animal researchers, and historians and religious scholars. Since the report was published, another example has come to light: a coal company’s lawsuit against West Virginia University, which has advanced to the state’s Supreme Court. Alpha Natural Resources wants to use the state’s open records law to obtain thousands of documents from a professor who found links between mountaintop removal mining, cancer and birth defects. Their request includes demands for draft papers, peer review comments, and correspondence with other scientists. The university is fighting the request on the grounds that it is overly broad.

Rep. John Moss (D-Calif.), who successfully advocated for federal freedom of information legislation. (Source: Kevin M. Baron, University of Florida)

Rep. John Moss (D-Calif.), who successfully advocated for federal freedom of information legislation. Photo: Kevin M. Baron, University of Florida

Thacker and Seife argue that harassment is a price worth paying for transparency. They acknowledge that “the same mechanisms that watchdogs use to uncover scientific wrongdoing have been abused in the past…no doubt they will be abused in the future.” Nevertheless, they write, “…transparency laws remain a fundamental tool for monitoring possible scientific misbehavior. And it would be a mistake to believe that scientists should not be subject to a high level of outside scrutiny.”

Indeed, transparency laws are in the public interest, as UCS has long argued. Thacker and Seife correctly note that UCS has used disclosure laws to uncover political and corporate interference in science and the organization has also cited the results of many open records investigations. However, the examples they cite focused on open records requests related to government policy decisions, not overreaching requests targeting academic scientists. Thus, their attempt to paint UCS as hypocritical rests on ignoring those important distinctions.

To be clear, “outside scrutiny” and harassment are two different things. That’s why UCS has also argued that  it is in the public interest to protect scientists from harassment campaigns that prevent them from doing their jobs.

Public institutions can do a better job at disclosure, protecting scientists

Over the past few years, we’ve been working with scientists, academic institutions, and transparency groups to try to figure out how the scientific community can foster transparency while protecting researchers from overreaching demands.

Open records laws are designed to support the public interest, and exemptions to those laws should do the same. Cartoon copyright UCS/Morgan Swofford

Open records laws are designed to support the public interest, and exemptions to those laws should do the same. (Source and copyright: UCS/Morgan Swofford)

Proactive disclosure is one obvious way forward. My colleague Andrew Rosenberg, who directs UCS’s Center for Science and Democracy, has argued that transparency, especially on funding, “should be the norm for science” and that institutions should disclose not only their funding sources, but any conditions under which they have taken money.

I asked Thacker and Seife if they support proactive disclosure policies. “Absolutely,” Seife said. He cited changes the National Institutes of Health made to conflict of interest disclosure in 2011 as one example. He cautioned, however, that many institutions do a poor job of following through with such policies. “The ones that do disclose are performing a valuable service, in my view,” he said.

Thacker also credited universities with successfully lobbying the White House to water down those rules. “That was unfortunate,” he wrote.

Better standards and practices for responding to open records requests and more resources to implement them are another avenue to pursue, in UCS’s view. Public universities, in particular, have dealt with state open records requests inconsistently. It would be beneficial for the scientific community—perhaps through organizations like the National Academies of Sciences—to agree on principles for ethically and responsibly responding to such requests.

I asked Seife and Thacker if they thought there was any way institutions could responsibly protect scientists from abusive requests. Seife acknowledged that abusive requests are “a big deal to those involved. But they’re relatively rare, and any solution is likely to be worse than the problem.” He cited problems in the United Kingdom with agencies denying “vexatious” requests.

He went on to say that “…institutions should certainly negotiate with requestors about the scope of requests — most people using FOI laws are doing it in good faith and want to reduce the burden on the institution and the subject of the request, so they’ll be responsive.”

Seife also drew a parallel between free speech from hate groups and open records requests that harass scientists. “As for the abusive requestors…well, much as we might not like it, we have to let the Klan march too,” he said. (Ellipses in the original.)

I see Seife’s point, but his comparison strikes me as imprecise and too absolutist. While hate groups certainly enjoy free speech rights, they also aren’t allowed to harass people.

Avoidable mistakes, missed specifics

I’m glad Seife was able to respond to some of my questions about disclosure and harassment. I also asked him and Thacker about what I see as errors in their original piece. Seife said he was “swamped” and had to stop short of addressing those points. “I’m afraid I’m out of time…if I get a chance before your deadline, I’ll see if I can answer more questions,” he said. Thacker responded to my emailed inquiries, but only to add a brief point about universities lobbying the White House.

If Thacker or Seife would like to respond to the points below (or others), I’d be happy to update this post.

I asked them about a passage in which they claim that Halpern’s report “failed to note” that several media organizations filed a brief in a Virginia court case concerning attempts to procure emails from leading climate scientists. In fact, Halpern’s report discusses the brief in two paragraphs on page 16 under the heading “Separating Legitimate Requests from Harassment.” The brief, by the way, was also nuanced. It cautioned the court against interpreting the “proprietary nature” of scientific correspondence in a way that could exempt “almost all public documents from the ambit of records laws.” Never the less, Thacker and Seife offer a simplistic description of the brief, saying the media organizations were opposing an “attempt to hide access to public emails.”

Thacker and Seife also write that the Columbia Journalism Review “panned the UCS report, writing that ‘sunlight is a benefit for all.’” But that quote is taken far out of context. Near the end of the article, author Anna Clark discusses how a biologist and a group targeting him with open records requests were engaged in a “public debate about record requests.” She wrote: “Whatever one’s stance—scientist, journalist, or a citizen trying to make sense of it all—bringing these backstage hijinks into the sunlight is a benefit for all.”

Additionally, Thacker and Seife claim that Halpern and I produced “muddled and internally contradictory” commentary in response to a Congressional investigation of climate researchers. The reader can decide how muddled we are, but we’re certainly not contradictory. In one post, I argued that members of Congress deserved answers about climate funding. Later that day, Halpern wrote a post in which he agreed with me on funding and added a separate point: universities would be justified in resisting requests for draft testimony and other deliberative correspondence. (Scientific societies—and a member of Congress who initiated some of the requests—made these same distinctions.)

Gretchen Goldman, lead analyst for UCS’s Center for Science and Democracy, also discussed differences scientists see between funding information and private correspondence in a post about records requests targeting biologists. Thacker and Seife, however, only quoted the part of Goldman’s argument that pertained to “excessive access to scientists’ inboxes.”

These distinctions are perhaps a bit nuanced, but Thacker and Seife’s blog post papered over them. That’s too bad, because scientists and scientific institutions would benefit from delving into the open records back-and-forth journalists and public interest groups deal with on a regular basis, particularly when it comes to uncovering outsider attempts at biasing and influencing scientific research and communication.

There are a lot of questions worth tackling on that topic and I posed one to Thacker and Seife. Do they see any differences between what they call “official documentation of funding” and scientists’ email correspondence with and about funders? In response, Seife shed some helpful light on his thinking: “They’re different kinds of documents, with different content and different sensitivity [with regard to] privacy. And when someone’s not being entirely forthright on the former, the latter can be invaluable to finding out.”

Yesterday, I encouraged Thacker to be in touch with me and my colleagues when writing pieces like this via Twitter. He said, “[I] was having a hard time reaching you.” For what it’s worth, I have no record or recollection of Thacker or Seife attempting to contact me or my colleagues for comment on their post.

I hope they follow up on an offer I made to Thacker months ago to meet and discuss his concerns. It still stands. And personally, I find it much more productive to discuss complex issues like this over the phone or in person rather than over social media or through trading blog posts.

Journalists and scientists (and lawyers) should work together to figure this out

Science in an Age of Scrutiny -- UCS

UCS’s guide for scientists who face public scrutiny.

Anna Clark described some of the tensions scientists and journalists see in the Columbia Journalism Review piece cited earlier:

“…it isn’t easy to parse harassing requests from legitimate ones—not without trampling on hard-won transparency laws, at least. Yes, some people abuse their right to open records, but the benefits are still a net positive for freedom of information. That means we need to look at how we can support scientists who are unduly subject to harassing requests while still protecting the right of journalists and others to make them.

Broadly, that’s a sensible approach. Unfortunately, a lot of conversations around how institutions respond to open records requests focus on the intent of individual requesters, which can distract everyone involved from what UCS sees as a more pressing issue: the need for scientific institutions to develop fair and universal standards not only for disclosure, but also for what constitutes harassment.

Ideally, protecting scientists from harassment shouldn’t interfere with journalists’ and public interests groups’ ability to discover undisclosed conflicts and wrongdoing. At the same time, the scientific community shouldn’t roll over for every request, especially those that cross the line into harassment.

Climate scientists, for instance, have created a legal defense fund to help respond to an influx of open records requests. More broadly, scientific societies, agencies and universities have worked to curtail Congressional inquiries and interest group open records requests that they view as overstepping or chilling to academic inquiry.

As both legitimate and harassing public scrutiny of science continues, and as public universities turn to more potentially conflicted corporate funding, it will be incredibly important for scientific institutions, including agencies, universities and journals, to embrace proactive disclosure policies and figure out how to fairly and effectively respond to open records requests.

This is complex stuff and simple answers are easy. Effective ones will be harder and worth figuring out.

UPDATE – 8/24/15

Late last Friday, PLOS removed the blog post to which I responded above. Retraction Watch has more, including a copy of the original post.

UPDATE – 8/21/15

Thacker and Seife’s blog now includes some corrections. It warrants a few more, in our opinion, and we’re waiting to hear back from PLOS regarding those.

Thacker and Seife also published an op-ed in the Los Angeles Times this morning that reiterates their core arguments. Importantly, they do so without conveying inaccurate information about UCS’s work. That’s good. As I wrote earlier, there are plenty of worthwhile issues to respectfully discuss and debate on this topic.

Separately, several journalists, academics and science communicators have shared Thacker and Seife’s piece online. I contacted about 20 of them, many of whom I’ve worked with before, to let them know about our response, including the fact that Thacker and Seife didn’t contact UCS for comment before publishing their piece. It’s been good to gather more thoughts on this issue from other people, especially journalists.

Thacker and Seife have not followed up on our offer to meet and discuss their concerns. Instead, Thacker has tagged me and UCS several times on Twitter. He has also sent at least one follow-up email to people about his post, including two of my colleagues. In that email he said it wasn’t clear why I hadn’t posted a comment on PLOS’s blog. I haven’t done so because I’m waiting for them to get back to us about errors in the original post.