Why scientists often hate records requests

The shadow side of sunlight laws

A mammoth open records request by an anti-GMO nonprofit is making headlines this month for the sheer breadth of its ask. US Right to Know, based in Oakland, CA, has asked at least four universities to turn over all correspondence since 2012 between 14 researchers and a number of private companies, including Monsanto, DuPont, Dow, and public relations firm Ogilvy & Mather.

“The records disclosed … will be used in preparation of articles for dissemination to the public,” according to the text of one record request obtained by Science Insider. But Gary Ruskin, USRTK’s executive director, put a blunter point on it when he told the Insider that the group is “especially looking to learn how these faculty members have been appropriated into the PR machine for the chemical-agro industry.”

Call it the shadow side of sunlight laws. While open records requests are designed to protect press freedom, they also make it possible for people who oppose certain scientific viewpoints to exploit them. Ideologically driven record requests to public universities, coming from both the right and left, are often purposefully designed to disrupt research. This is nothing more than bullying, according to a new report from the Union of Concerned Scientists, which advocates for a measured approach to open records, with a more discrete definition of which requests serve the public good and which do not.

But as CJR has previously detailed, it isn’t easy to parse harassing requests from legitimate ones—not without trampling on hard-won transparency laws, at least. Yes, some people abuse their right to open records, but the benefits are still a net positive for freedom of information. That means we need to look at how we can support scientists who are unduly subject to harassing requests while still protecting the right of journalists and others to make them.

You can thank the tobacco industry for pioneering the tactic of invasive record requests back in the 1990s, according to the new report. It has gathered steam in the internet era, where email messages leave a much larger and more candid paper trail. Climate scientists and animal researchers are among those who are prone to harassing open record requests, according to report author Michael Halpern, UCS’s program manager for the Center for Science and Democracy. Personal and proprietary information is often requested that goes beyond the responsibility of public employees, he argues, and overly broad requests lead to time-consuming lawsuits that drain public resources. His report advocates for a communal approach to managing open records.

Which sounds great until you see how difficult it is to nail down any specific actions. The report’s recommendations fall into slippery and subjective ground, essentially suggesting that everybody involved—from university officials to legislators to professional associations—communicate better and act in good faith. It states, for example, that, “open records requests should not be the primary option for those who seek to understand the public’s business.” Fair enough. But this elides any recommendation for how exactly you enforce that without undermining important sunlight measures.

I asked Halpern if he could expand on where to draw the line between press rights and privacy rights. He said that there should be open records exemptions that “support what is truly in the public interest.” Research communications—basically, emails among scientists as they banter and play devil’s advocate—are part of the deliberative process, and essential for “the ability of scientists to ask difficult questions and produce new knowledge.” The privacy of that is in the public interest, and so it should be exempt, he said. But, as his report emphasizes, information on funding is fair game because there is a public interest in “the ability of those outside the university to see if funds were misspent or financial conflicts of interest were kept secret.”

“When creating and implementing exemptions, we should steer clear from looking at the motivation of those making requests,” he said in an email. “That’s a slippery slope that gives institutions too much power to avoid responding adequately to ‘inconvenient’ requests.”

But it is just that problem—looking into the motivation of requesters—that is so hard to avoid. The UCS report suggests as much, detailing instance after instance where ideological and commercial interests led to intrusive requests that chill the scientific process. The reader is meant to be appalled at how pervasive this is—and indeed, it is appalling. But the report never details exactly how you can tell a harassing request from a legitimate one without looking at motivations. It seems to come down to the old line about pornography: “I know it when I see it.” And that’s just not enough to build a policy on.

When I asked Halpern if there are any model policies out there, he said that he isn’t sure if one exists yet. But he did point to the University of California - Los Angeles as an institution that “has put a lot of thought and effort into the balancing act.” UCLA issued both a statement on the matter and a guide for faculty on the receiving end of FOIA requests. On the other end of the spectrum, he said that Pennsylvania is an example of a state going too far in exempting university records from open records law. Its exemptions “made it difficult for journalists to look into (Penn State’s) football sex abuse scandal.”

“Universities are public entities, and should not be given special treatment,” he added. “That said, they should be able to protect the ability of their employees to do their jobs.”

One good tactic for breaking the tension between scientists and journalists is emphasized in the report: Universities need to be better in offering clarity and consistency to their faculty about dealing with FOIA. Faculty members targeted by the anti-GMO groups records request were delayed in responding until they heard back from university lawyers. It seems like that time and energy could have been spared had the universities been proactive in detailing the appropriate way to respond in these requests, like UCLA has done. Universities also should update their open records policies regularly to account for changes in technology.

Another resource is UCS’s own guide for researchers facing outsized scrutiny for their work. UCS and similar associations may consider making a state-by-state version of the guide, tailored to the different open records laws around the country. Journalism organizations—both those that make FOIA requests and those that teach others how to make them—can be mindful of advising reporters in how to responsibly tailor their requests. That of course has the added benefit of making sure reporters home in on the most crucial information for their project. Media organizations and professional associations may also want to consider offering FOIA training sessions to advocacy groups that have no intention of harassing researchers, but who may unintentionally do so if they haven’t learned how to make the best and most targeted use of a records request.

And in the true shared spirit of both journalism and science, “peer review” is an effective tonic for a dispiriting trend that makes both professions more difficult. Ken Folta, one of the University of Florida scientists hit by the anti-GMO request, has been intensively blogging about it. His frustration is clear, but that makes it more powerful when he declares his opposition to “retaliatory” record requests on scientists who, unlike him, are skeptical of GMOs. “We should not tolerate it against our friends, and we should not tolerate it against those we disagree with,” he writes. “Let’s continue to stand up for science and reason, let data do the talking, and continue to teach, especially to those we disagree with.”

It was never a question whether Folta would comply with the record request, he writes. But by detailing his experience—both the emotion and the introspection of it—he has drawn the anti-GMO group into a public debate about record requests. Whatever one’s stance—scientist, journalist, or a citizen trying to make sense of it all—bringing these backstage hijinks into the sunlight is a benefit for all. It may be an incremental process—just like science and journalism are—but it works.

Anna Clark is CJR's correspondent for Michigan, Wisconsin, Ohio, and Pennsylvania. A 2011 Fulbright fellow, Clark has written for The New York Times, The American Prospect, and Grantland. She can be found online at www.annaclark.net and on Twitter @annaleighclark. She lives in Detroit.