Twenty Years of Open Records Attacks

February 13, 2015 | 11:50 am
Michael Halpern
Former Contributor

University of Minnesota environmental scientist Deborah Swackhamer studied toxaphene, a chemical once considered a promising replacement for DDT but eventually found to be quite toxic. But when Swackhamer joined a group of researchers exploring why there might be unusual concentrations of the chemical in the Great Lakes, the university received the largest open records request ever made in Minnesota.

Attorneys from a prominent law firm sought everything Swackhamer had ever touched—raw unpublished data, class notes, purchase records, telephone records, and more—for a 15-year period. She spent many hours going through papers; the disclosed materials eventually filled a conference room. The experience was intimidating and disruptive, taking valuable time from research.

    Sunlight laws are essential for holding governments accountable--but increasingly, they are being misused to target academics who produce research that activists and special interests don't like. Photo: James_wheeler via Flickr/creative commons

Sunlight laws are essential for holding governments accountable–but increasingly, they are being misused to target academics who produce research that activists and special interests don’t like. Photo: James_wheeler via Flickr/creative commons

A while ago, I put out a call for stories of scientists who had faced invasive open records requests. I expected to hear about the experiences of academics from a wide variety of fields. But I didn’t expect to learn that researchers have faced growing demands for all kinds of personal documents for more than two decades, essentially since the use of email became common.

Today at the meeting of the American Association for the Advancement of Science, I’m moderating a panel that examines how open records laws can be used to attack scientists and other academics, and explores ways to balance privacy and accountability. I’m also releasing Freedom to Bully, a report that provides a series of case studies I collected over the past several weeks.

There are the tobacco researchers who studied the marketing cigarettes to children. Tobacco companies attempted to find out the names and telephone numbers of the kids who were interviewed for the study. The epidemiologist who was harassed by the pork industry when he studied the impact of industrial hog operations on low-income communities and people of color. The ecologists who studied whether communities in Hawaii would accept euthanasia to control feral cats.

To be sure, open records requests are there to hold governments accountable. In general, the more transparent government is, the more officials are likely to serve the public interest and resist efforts to suppress, censor, or otherwise unduly influence scientific research.

But there’s an unexpected dark side to these laws that needs to be dealt with. In short, activists and special interests from across the political spectrum are initiating broad and invasive open records requests for emails, handwritten notes, raw data, and anything else they can get their hands on. The practice can intimidate researchers and shut down speech.

Universities and researchers are often equally underprepared to respond, sometimes with disastrous results. But universities and their associations, as well as scientific societies and others, are beginning to pay attention to this conundrum, and are developing solutions that will allow for an appropriate level of transparency while protecting the research process. The answers won’t be simple, but it’s important that we seek them.

UCS previously published a guide for scientists under scrutiny to help them think through how they should respond to open records and other attacks. I’m still interested in hearing about examples of the misuse of open records laws; if you know of others, send me a note.