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Science and Transparency: Harms to the Public Interest from Harassing Public Records Requests

Donald R. Smith, , UCS | April 18, 2019, 9:25 am EST
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In my work as a professor and researcher in the Microbiology and Environmental Toxicology Department at the University of California, Santa Cruz, I investigate the basic mechanisms underlying how exposure to toxic metals contribute to cellular effects and disease. My lab explores how exposures to environmental toxins, such as lead, manganese, and arsenic can cause or contribute to the development of diseases in humans. For example, some neurobehavioral and neurodegenerative disorders, such as learning deficits and Parkinsonism have been linked to elevated lead and manganese exposures in children and manganese exposures in adults, respectively.

California condor in flight. Lead poisoning was a significant factor precluding the recovery of wild condors in California.

In my career spanning 25 years, I helped develop and apply a scientific method to identify environmental sources of the toxic metal lead in exposure and lead poisoning cases in children and wildlife. I helped develop laboratory methods for evaluating tissue samples, including a “fingerprinting” technique based on the stable lead isotope ratios found in different sources of lead that enables the matching of lead in blood samples to the source of the lead exposure.

In the early 2000s, I collaborated with graduate students, other research scientists, and several other organizations to investigate the sources of lead poisoning that was killing endangered California condors. Our research showed that a primary source of lead that was poisoning condors came from ingesting lead fragments in animals that had been shot with lead ammunition, and that this lead poisoning was a significant factor precluding the recovery of wild condors in California.

Our work provided important scientific evidence of the harm that lead ammunition causes on non-target wildlife, and it supported the passage of AB 821 in 2007 and AB 711 in 2013, which led to partial and full bans on the use of lead ammunition for hunting in California.

Gun lobby attempts to discredit research

Because of our research, I and other collaborators received five public records requests under the California Public Records Act (CPRA) between December 2010 and  June 2013 from the law firm representing the California Rifle and Pistol Association Foundation seeking, in summary: all writings, electronic and written correspondence, analytical data, including raw data related to my research on lead in the environment and animals spanning a six year period. The very broad records requests asked for any and all correspondence and materials that contained the word “lead,” “blood,” “isotope,” “Condor,” “ammunition,” or “bullet.”  The request essentially sought everything I had done on lead research for this time period.

One seeming goal of the requestors was to discredit our findings and our reputations, as made apparent on a pro-hunting website that attempted to discredit our peer-reviewed and published findings. We initially responded that we would not release data and correspondence relating to unpublished research, because of our concern that we would lose control of the data and risk having it and our preliminary findings be published by others. As a result, the California Rifle and Pistol Association Foundation sued us in California Superior Court.  Ultimately, the court ruled in favor of the university and researchers by narrowing the scope of the CPRA requests, and limiting the requests to published studies and the underlying data cited.

Impacts and harms from overly broad public records requests

These very broad public records requests have had a significant impact on my ability to fulfill my research and teaching duties as a faculty member at University of California, Santa Cruz. I personally have spent nearly 200 hours searching documents and electronic files for responsive materials; meeting with university counsel and staff; preparing and sitting for depositions, court hearings, and giving testimony. Our efforts to provide responsive materials are ongoing.

Overly broad public records requests deprive the public of the benefits that such research can bring, such as helping wildlife and endangered species (such as the California Condor) survive and thrive by removing sources of environmental lead contamination.

While these requests have had a personal and professional impact on me as an individual, they have caused broader harms to the university’s mission of teaching and production of innovative research that benefits students, California residents, and the public at large. Impacts include:

  • Interfering with my ability to pursue research funding, conduct research, analyze data, and publish my research because of the time required to search and provide responsive materials that takes away from time invested in other duties.
  • Squelching scientific inquiry, and research communications and collaborations with colleagues or potential colleagues at other research institutions.

By chilling research and discouraging graduate students and collaborators from pursuing investigations into topics that could put them at odds with powerful interests, these types of expansive records requests deprive the public of the benefits that such research can bring, such as helping wildlife and endangered species survive and thrive by removing sources of environmental lead contamination.

Why I support modernizing the California Public Records Act

I chose to testify in front of the California Assembly Committee on the Judiciary in support of AB 700 and the effort to modernize the California Public Records Act to protect the freedom to research and to help  streamline the ability of California public universities to process and manage public records requests. This bill establishes very narrow exceptions for researchers to protect unpublished data and some peer correspondence, which would help prevent task diversion, reputational damage, and encourage inquiry and knowledge production at public universities across the state. AB 700 would also reduce the serious burden from expansive and overly-broad records requests on researchers and on the courts and the long backlog of records requests. I think this bill strikes the right balance between public transparency and privacy for research. Ultimately, the public will be better served if the state provides more clarity about what information should be disclosable under the California Public Records Act.

 

Donald Smith is Professor of Microbiology and Environmental Toxicology at the University of California, Santa Cruz. He received his PhD in 1991 and he joined the faculty at UC Santa Cruz in 1996. He has over 20 years experience and published over 100 peer-reviewed articles in environmental health research, with an emphasis on exposures and neurotoxicology of environmental agents, including the introduction, transport and fate of metals and natural toxins in the environment, exposure pathways to susceptible populations, and the neuromolecular mechanisms underlying neurotoxicity.

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Photo: Gavin Emmons
Photo: Donald Smith

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  • imapuppet

    Given the ease and ubiquitous use of electronic records, with only limited exception, records created and paid for by tax dollars should be easily accessible to the public without needing to jump through hoops.

    Currently, records types that have been regularly provided in response to state and federal records requests have become much more difficult to obtain, often requiring appeals, and then provided grudgingly.

    Secrecy and obfuscation should not be the baseline.