Yes, We Can Defend Scientists from Harassment AND Increase Transparency

October 9, 2015
Michael Halpern
Former contributor

We’ve written extensively about the use of open records laws to harass scientists for the past couple years and encouraged governments, academic institutions, and journalists to address the challenge of balancing accountability and academic freedom. The issue has taken on a new dimension in recent weeks, as high profile releases have brought significant attention to the work of academics throughout the country. Will this prompt institutions to figure out better solutions?

Recent use and misuse of open records laws

Last year, a University of Kansas student group filed an open records request with the university for information related to a relationship between a Koch foundation and the KU Center for Applied Economics, led by economist and former Koch employee Art Hall. The group sought information on funding and related correspondence (totally legitimate) as well as all correspondence between Hall and a number of other organizations (more of a gray area). With Koch support, Hall sued the university to prevent any and all releases.

In August, KU and Hall reached a settlement that allowed for the release of a few documents specifically relating to the funding agreement between the Koch foundation and the university, as well as how money was spent. The documents revealed that the center used Koch money to produce analysis of the Kansas renewable energy standard (which Koch strongly opposed) that Hall subsequently used in testimony before the Kansas legislature while claiming that his testimony was independent. Withheld (if they exist) were any communications between Hall and the Koch Foundation not specifically related to funding.

Open records requests for the correspondence of genetic engineering researchers has brought significant attention to how these laws can both harass scientists and hold them accountable. Photo: BASF

Open records requests for the correspondence of genetic engineering researchers has brought significant attention to how these laws can both harass scientists and hold them accountable. Photo: BASF

What happened in Kansas, though, pales in comparison to the sordid and ongoing tale with regard to a group of genetic engineering researchers. In February, an anti-GMO group filed open records requests targeting the work of dozens of scientists, requests which UCS thought were too broad (not wholly inappropriate, just too broad). The requests sought all correspondence between dozens of academics and multiple biotechnology companies, trade groups, and public relations firms.

University of Florida biologist Kevin Folta was one of the targets and, as Florida’s law errs on the side of transparency, the university turned over significant amounts of his correspondence. This first led to a misleading essay in PlosBio followed by a New York Times story that explored previously undisclosed connections between genetic engineering researchers and the agricultural company Monsanto, as well as connections between academics and the organic industry.

These grants and other influence, of course, could have been discovered through a better university disclosure process and/or a more narrowly-constructed open records request.

Subsequently, the anti-GMO group shopped around emails from other scientists to various reporters and found a few bites. Some articles reasonably report on industry grants and relationships with academics that should have been better disclosed (by the companies, the scientists, and/or the universities).

Other articles used emails between scientists to suggest that any contact between scientists and the industry suggests corruption. Still other exchanges were deceptively framed on the group’s website to intimate that reporters were taking money to write favorable stories on genetically modified food. (They were not).

Limiting harm while preserving the tool

Let’s be clear: as I’ve said before, open records laws are critical to holding government accountable. All public institutions, including universities, should be subject to them. Governments also sometimes overuse exemptions and use other methods to resist turning over information that should legitimately be subject to public view. But these laws are also vulnerable to misuse, and are being tested state by state.

In West Virginia, for example, a coal mining company recently sued West Virginia University for failing to grant access to access to peer review comments, draft reports, and other deliberative information related to the work of a former WVU professor who found negative health impacts for people who live near mountaintop removal mining sites. The university  identified hundreds of thousands of documents that would be potentially responsive.

Should the public have the ability to determine whether universities are facilitating independent research or being coopted by private interests? Absolutely. But requesting a large cache of emails to measure inappropriate influence comes with too many negative consequences. If you got thousands of pages of my email correspondence, you’d find something to take out of context to portray me negatively.

That’s true for pretty much anyone. If you give me six lines written by the hand of the most honest of men,” allegedly said Cardinal Richelieu, “I will find something in them which will hang him.”

With better disclosure standards and modernized open records laws, we won't have to choose between transparency and academic freedom. Photo: Wikimedia Commons

With better disclosure standards and modernized open records laws, we won’t have to choose between transparency and academic freedom. Photo: Wikimedia Commons

Those who have spent their professional lives advocating for transparency are nervous, and there has been a bit of a backlash against those of us who suggest that there might be some reasonable limits to what requesters should ask. Some argue that we have to choose between transparency and academic freedom. That occasional harassment is the price we should pay for accountability.

I don’t accept this premise. Neither does one of the people most central to the passage of the original federal Freedom of Information Act, Ralph Nader. In a recent op-ed, he warned against blocking the use of open records laws, but recognized that “FOIA can be abused to harass scientists for ideological reasons.”

I think that there are solutions, both inside and outside of the open records request process, that can keep us from having to make that sacrifice. So again, here are some suggested ground rules:

It’s okay for academics to talk to industry. It’s also okay for them to work with colleagues in industry. It’s okay for them to get funding from industry. It’s okay for scientists to publicly share their scientific analysis and advocate for their personal policy preferences.

Funding, and any strings attached to that funding, should be disclosed proactively and also under open records laws to avoid both real and perceived conflicts of interest. The public should see grant agreements, and any strings attached to those agreements. We should see any documents that demonstrate whether funders were given control over research direction, data collection, or products. We should see how money is spent. We should also see any evidence of funders trying to influence hiring decisions, curriculum content, or other academic activities that should be independent.

Documents that constitute the research process should be kept confidential under open records laws, especially when disclosure would compromise the research process. This includes peer review comments, research notes, paper drafts, handwritten notes, some types of data, and other academic deliberations. This also includes input from industry scientists, even those associated with entities that are paying for the work. This would likely require redacting some documents requested under open records laws to protect frank exchanges among researchers.

Academics should err on the side of disclosure. Public perception matters; sometimes, simply complying with a university’s minimum disclosure requirements and checking off a box is insufficient. Research funding sources should be disclosed in associated journal articles, conference presentations, and other relevant venues. Compensation for time and travel for public or policymaker engagement should also be disclosed at events or in testimony. The more one voluntarily discloses, the easier it is to insulate oneself from attacks. Ultimately, we want public discussion to be about issues, not about a researcher’s integrity.

Open records law reform is a solution, but not the best solution. There are 50 states plus Washington, D.C. all with different open records laws and political contexts. They’re not going to agree on a common approach. It costs hundreds of thousands of dollars to litigate cases in state court. That said, there are many thoughtful people who are working hard on improving implementation of FOIA, and we should take full advantage of their efforts.

Together, we need to develop common disclosure standards and incentives to adopt them. The best way to avoid these costly and distracting fights is to agree on what should be disclosed and what should be kept private and develop mechanisms to encourage these standards to be embraced. This would put all researchers—public and private–on more equal footing. I think that scientists, journalists, corporations, and universities could come up with a common framework. Then, all institutions that receive government grants (such as those that come from the National Science Foundation) could be compelled to comply with that framework as a condition of receiving those grants. There are probably other enforcement mechanisms worth considering, too.

A more thoughtful balance between academic freedom and accountability will lead to better public understanding of science and policy outcomes that are more in line with the public interest. In the meantime, scientists who work on contentious issues should be prepared for all kinds of scrutiny, both justified and unjustified. Here’s a guide that helps scientists think through these challenges.