Legislation to Modernize the California Public Records Act Improves, Advances

April 22, 2019 | 1:50 pm
Michael Halpern
Former Contributor

UCS-supported legislation to modernize the California Public Records Act (CPRA) advanced through the California Assembly Judiciary Committee earlier this month, and will soon be heard by Assembly Appropriations. Assembly Bill 700 is intended to preserve the ability of researchers at public universities to pursue highly policy-relevant research without being harassed and attacked by companies and activists who are threatened by their work. The legislation has sparked spirited, productive, highly interesting conversations about how to protect researchers while also allowing for full accountability for public institutions and their staff.

As the legislative process plays out, there has been some confusion about the bill and misrepresentation of its intended scope. To provide clarity about the bill’s intent we created this Frequently Asked Questions document. In the paragraphs below, I reproduce some of the main questions in the document after putting them in the context of our current efforts.

Attacks on research have demonstrable harm

Commercial and industry interests and individuals across the political spectrum are increasingly using broad public records requests to disrupt research, attack and harass scientists, and chill professional discussion and debate. This can and has squelched inquiry, discovery, and innovative research that would benefit the public. In California alone, tax preparation companies, the gun lobby, and the chemical industry have all used public records requests to undermine policy-relevant research. And attacks don’t need to be huge in number: an attack on one researcher can discourage inquiry in an entire field. I and others have written about this extensively, and you can find numerous examples in UCS’s Freedom to Bully report and the “Open Records, Shuttered Labs” UCLA Law Review  article by Claudia Polsky.

Tobacco companies, for example, have used open records requests to gain access to records of scientists studying the impact of cigarette marketing on children and adolescents. There are harms to individual researchers, who suffer harassment, high legal and processing costs, and diversion away from their primary work. Some researchers have even left academic research positions altogether or moved to private universities. Yet the broader, more significant harm is to the public who no longer benefits from the results of important research when researchers abandon the field or stop investigating.

Another example: the California Rifle and Pistol Association Foundation sought all correspondence related to an environmental toxicologist’s work. The toxicologist found that lead in ammunition was poisoning endangered California condors, evidence that led the state to restrict lead ammunition. The requests took a toll on the researcher’s ability to pursue funding, put at risk the unpublished data being disclosed and scooped by others, undermined his collaborations with colleagues, and discouraged graduate students from working with him.

Scientists who volunteered their time and helped plug the hole in the ocean during the Deepwater Horizon oil disaster expressed significant concerns about the public disclosure of deliberative scientific materials, whether it be through open records requests or subpoenas.  “Our concern is not simply invasion of privacy, but the erosion of the scientific deliberative process. Deliberation is an integral part of the scientific method that has existed for more than 2,000 years; e-mail is the 21st century medium by which these deliberations now often occur,” wrote the scientists.

“There remains inadequate legislation and legal precedent to shield researchers and institutions…from having to surrender pre-publication materials,” added their institution, the Woods Hole Oceanographic Institute.

An opportunity to modernize the CPRA

So how did this legislation come together? Last year, University of California Berkeley law professor and public interest advocate Claudia Polsky published a law review article on the increasing weaponization of open records laws. The New York Times wrote about the issue, profiling a UC-Davis tax policy expert who was attacked by the tax preparation industry after he spoke out against efforts to prevent the U.S. government from providing free tax filing services.

Soon thereafter, UCS began talking with Assemblymember Laura Friedman’s office about what legislation to address this problem might look like, and agreed we would work together, with input from numerous stakeholders, to craft a legislative solution. In short, our goal is to protect researchers’ scientific work while preserving public access to documents that could demonstrate sexual harassment, research misconduct, funder influence, misuse of funds, illegal activity, or any other conduct or business that is not explicitly part of the deliberative aspects of the research process. Where and how to draw that line is still up for discussion.

At the Judiciary Committee hearing, some committee members cautioned that without a careful approach, attempts to exempt academic materials could go too far and prevent access to information that rightfully should be in the public domain. For example, there was agreement that we would not want legislation to inadvertently make it more difficult to find out when human or animal study participants are mistreated. Thankfully, a majority of the committee recognized the significant risk to public university research from abusive CPRA requests and expressed confidence that a narrowly crafted bill could meet our twin goals of protecting transparency and quality research.

Seeking input to improve the bill

UCS is a strong proponent of transparency and accountability and has actively encouraged and reached out to other California and national pro-transparency organizations to weigh in on the legislation as it develops. We have met with the California Newspaper Publishers Association, the American Civil Liberties Union, the Electronic Frontier Foundation, the Reporters Committee for Freedom of the Press, and several other organizations to discuss how to narrowly tailor an exemption that protects the research process while allowing for discovery of misconduct or any improper influence on that process.

Every one of those meetings has been helpful to understand the ways that the CPRA has helped uncover misbehavior at public universities, and to help craft language that would allow for this kind of accountability to continue. While the organizations named above are not yet supportive of the legislation, I am hopeful that with the right amendments, they will be.

To me, it is encouraging to see thoughtful, reasoned dialogue about how we solve this problem. This is a conversation that has long been needed, and I’m gratified to see it happening in California. The more voices, the better. To that end, UCS welcomes input from a diversity of perspectives, including those who support the legislation in its current form and from those who think it needs to be improved. Progress depends on input from a variety of perspectives.

What should continue to be public

UCS believes it is critical to maintain public access to the vast majority of documents. The CPRA must continue to enable oversight of California’s public universities, including their funding, administration, and independence. Public access is crucial to understand whether university investigations into research misconduct and discrimination and harassment complaints are adequate. It’s also important to understand the potentially biasing influence of funders, not only on the research process but also on how academics use their research to communicate with the public or influence policy.

Toward this end, AB 700 makes explicitly clear that information regarding research funding agreements, communications among funders and researchers and other university staff, records related to governance or institutional audits of compliance, records related to disciplinary action taken against researchers, records that could demonstrate harassment or other improper behavior, or records not explicitly related to the research process will not be exempt.

What we do want to exempt from disclosure

AB 700 would protect a limited and narrow set of documents where more privacy encourages cutting edge research with little cost to public understanding of that research. This includes unpublished data, unfunded grant applications, and information that could compromise the privacy of research study participants. It also includes communications among researchers during the research process that would preserve their ability to have frank conversations with their peers about the research itself. Access to a researcher’s email correspondence with academic peers to test out and refine ideas provides little to allow the public to better understand the research itself.

Instead, it can and does chill conversation and discourage scientists from fully criticizing the work of others and from pursuing research questions they know will open them up to attacks from powerful interests. Public universities and professors are rightfully subject to open records, but that right should not be absolute. We all deserve the freedom to test new ideas, even and especially when they are contentious. Regardless of your line of work, can you imagine if every email you wrote, every comment you made, or every honest criticism of a colleague’s work was placed in the public domain?

It may be challenging to craft bill language that advances accountability while protecting researchers’ ability to pursue public interest research, but I’m confident that we can meet these twin goals.