Corporations and Activists are Exploiting Open Records Laws. California is Trying to Change That

February 22, 2019
Cartoon: Brian Narelle/UCS
Michael Halpern
Former contributor

Corporations and activists from the left and the right are abusing open records laws to harass public university researchers. A growing body of analysis shows that these attacks are growing both in number and severity. Fortunately, some states have begun to clarify how these laws apply to university researchers, both through courts and state legislatures.

Examples abound. The tobacco industry attacked experts who examined the impact of cigarette marketing on children. An environmental chemist trying to protect the Great Lakes was forced to spend hundreds of hours away from her research. The pork industry went after an epidemiologist who studied the public health consequences of factory farms. Some scientists have even been threatened with physical harm, with activists making sensitive information available. And the message to all academics is clear: stay away from policy-relevant work that might hurt our bottom line, or risk having your work derailed by a lawsuit.

This week, California Assemblymember Laura Friedman introduced legislation that would modernize the California Public Records Act to encourage the release of information that enables public accountability while protecting the research and discovery process that is so critical to the mission of public universities. The California legislature should quickly pass this legislation if it expects to continue to foster a world-class university system and the strong economy that comes with a fully-independent research enterprise.

We need to protect transparency

Let’s be clear: public records laws are essential to an accountable government, and UCS submits open records requests on a regular basis. Because of these laws, we know about the White House’s attempt to suppress scientific analysis of toxic PFAS chemicals. We know the EPA’s plan to restrict the use of science in the decisions it makes was hatched by political appointees. We know that the Department of Energy wasted hundreds of millions of dollars on failed nuclear fuel processing technologies.

When university researchers don’t have sufficient freedom to follow the evidence where it leads, public health and environmental protection will suffer. Improving the California Public Records Act will defend this freedom while allowing for public accountability to flourish.

We also know that too often, government entities try to limit open records laws or fail to comply with them in a timely manner. UCS is waiting for replies to dozens of requests, and is currently suing the Department of Energy for access to documents related to power plant bailouts. The Department of Interior recently proposed sweeping changes to how it processes open records requests that would greatly reduce public access to federal documents.

Public universities are rightfully subject to open records requests. University governance, the use of taxpayer dollars, staff misconduct and harassment, and special interest influence on research and curricula are all fair game for public scrutiny. But there should also be some protections that allow researchers to test out new theories and develop new discoveries. Otherwise, public health, environmental protection, and our economy all suffer.

How open records laws are exploited

I first noticed how public record laws are used to attack academics when a coal-industry funded organization attempted to access the email correspondence of climate scientist Michael Mann. Fortunately, with the help of UCS and other science groups, Dr. Mann won a unanimous Virginia Supreme Court decision to protect his work. But the entire process undermined the public conversation around climate change science and cost Virginia taxpayers hundreds of thousands of dollars.

Others scientists have not been as fortunate. Arizona’s high court recently forced the University of Arizona to turn over thousands of pages of correspondence among climate scientists (including correspondence with Dr. Mann).

Regrettably, attacks on climate scientists are just, um, the tip of the iceberg. A 2015 UCS report found that open records requests have disrupted or derailed the careers of law professors, biologists, tobacco researchers, chemical toxicologists, and many others whose work is found to be inconvenient or objectionable. Some scientists and their families face sustained harassment and even get death threats on a regular basis and have had to increase personal security protection when information obtained through records requests is put up online by hostile actors.

A recent law review article by UC Berkeley professor Claudia Polsky expands upon these findings. From the abstract:

In the past decade, scholars in states with broad open records laws have increasingly received harassing records requests from requesters politically or economically threatened by the intellectual work they seek to reveal. Such requests undermine the peer-review process and the communications through which scholars explore and contest ideas, impairing the core intellectual functions of the university. Equally worrisome, harassing record requests chill research on critical contemporary issues—a knowledge-generation role of universities that is essential to a democracy, which depends on an informed citizenry.

Late last year, the New York Times explored how the tax preparation industry turned on a UC Davis law professor who had been critical of an alliance between the Internal Revenue Service and tax preparation companies. The law professor reported that a broad open records request for his correspondence with other academics resulted not only in significant lost time but also in reduced collaboration with researchers at private universities (who are not subject to open records requests).

It’s also critical to recognize that the information obtained through public records requests offers little insight into the quality of published research. While those who abuse these laws sometimes suggest that all they are seeking is data and methods, the sharing of data and methodologies is standard practice for published scientific papers. Instead, activists seek information they can take out of context to undermine legitimate work.

From the left and right, calls for reform

The current state of affairs has prompted groups on the conservative and liberal sides of the spectrum to voice support for reform, including the Foundation for Individual Rights in Education and the Climate Science Legal Defense Fund. There are two major steps in this process: modernizing open records laws and mandating more proactive disclosure from universities and researchers.

Some scientific groups have even needed to provide lawyers for scientists who face expansive open records requests.

The current patchwork of open records laws across the country is untenable. Researchers often collaborate with peers in other states and countries, and between public and private institutions. Every state law is different, making it very difficult for researchers to know what communications are protected and what are not. It also creates disincentives for better-protected academics, such as those in private universities, to collaborate with their peers who work at more vulnerable universities.

A number of states with large public university systems, such as Texas, California, Wisconsin, Michigan, and North Carolina, have open records laws that allow for attacks to proliferate. Larger states with more clout need to pass legislation that strikes the right balance so that expectations around privacy and disclosure become more consistent for everyone, and protects scientists’ ability to conduct innovative research as well as their physical safety.

We also should recognize that open records laws are a poor substitute for proactive disclosure. We need to address disclosure standards and practices so that most of the information that people need to hold public entities accountable are proactively put in the public domain. Writing in Science, Dr. Mann and I suggested some avenues of exploration here:

The scientific community should develop common disclosure standards for all researchers and creative mechanisms for enforcement. Implementation could become a requirement for university accreditation. The standards could also be adopted by government grant-making bodies, increasing the likelihood that state laws will be modernized, or by legislatures and executive agencies for academics who choose to provide testimony.

We can thread the needle

Protecting researchers and promoting transparency are not necessarily in conflict. I have written repeatedly (see here, here, here, here, and here) about how we can encourage legitimate scrutiny while also protecting researchers. The public interest lies in both.

A post I wrote in 2015 detailed how anti-GMO activists used overly-broad open records requests to attempt to vilify genetic researchers and the journalists who report on their work, and contrasted that with a narrower request from a journalist:

We said that the group’s requests constituted harassment because they were so broad and seemed like fishing expeditions. The group has since proved this point, publishing and deceptively framing emails on its website to intimate that reporters were taking money to write favorable stories on genetically modified food (they were not) and shopping around other manufactured controversies.

Some journalists filed more narrow requests and ended up with more than enough material. For example, Eric Lipton, also writing for The New York Times, penned an article based on his own requests that examined the funding of research and public speaking among academics from both GMO companies and the organic food industry.

I’m thrilled to see California taking on this issue, and hope that more states will follow suit.