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By Michael Lucibella
A recent report on the harassment of scientists through abuse of public disclosure laws highlights the tension between academic freedom and the public’s right to government transparency.
In February 2015 the Union of Concerned Scientists (UCS) released the report Freedom to Bully, which examines the effect of freedom of information laws and calls for a broad effort to address how such laws should be applied to researchers. Speaking at the 2015 meeting of the American Association for the Advancement of Science, experts agreed that changing such laws would be difficult, but disagreed as to what should be done, or even whether laws should be changed.
Freedom of information laws, sometimes called sunshine laws, are intended to ensure that government activities remain open and accountable by allowing any citizen to request and receive certain government documents, including some emails. This means that if requested, researchers who receive government grants or work at public universities and institutions could potentially be compelled to release some of their records. These laws vary state by state, and the documents included or exempted vary as well.
“The use of open-records laws to access the email correspondence and other private information of scientists and other researchers is becoming more common,” said Michael Halpern from the UCS. “While these laws are important for public accountability, excessive disclosure can chill scientific speech and make collaboration between researchers considerably more difficult.”
The UCS report highlighted about a dozen researchers over the last 20 years from a variety of disciplines who have been the subject of massive records requests that Halpern characterizes as harassment. Few physicists seem to have been the target of such wide-ranging requests, but in principle any scientist with federal support, or in some jurisdiction, state or local government support, could be affected.
The primary targets have been researchers engaged in controversial work, including climate change, the health effects of tobacco, and animal experimentation. Professors at academic institutions have been forced to turn over every related document and email, written over many years, which disrupts their work in the process.
“Sunlight is good, it’s helpful. We use Freedom of Information Act [FOIA] laws and open records laws all the time to find out how government does business,” Halpern said. “[But] too much scrutiny can really constitute harassment.”
Climate scientist Michael Mann at the University of Virginia is the highest-profile case. After having his email account hacked in 2009, an incident that became known as “ClimateGate,” the same files were subpoenaed by then-Virgnia-attorney-general Ken Cuccinelli and later requested by the Energy & Environment Legal Institute, which is connected with the conservative funders Charles and David Koch.
Ultimately, after years of litigation all the way up to the Supreme Court of Virginia, Mann’s personal emails were exempted from disclosure under the law. “When you become a symbol in the climate change debate, there are those that try to knock you down,” Mann said.
The report calls in part for universities to clarify how they respond to what they consider overbroad requests, so that a researcher’s ability to continue working is not compromised. “State legislators also need to examine their open records laws to ensure that they include appropriate exemptions but are not so broad as to compromise accountability,” the report reads.
Changing the laws in all fifty states would be difficult. The experts agreed that it would require a massive effort to bring all state laws in line with each other. “As much as it makes sense to attack the problem where it starts, which is state FOIA laws, it may be almost impossible to get anything done in that regard,” said Alan Morrison, a law professor at the George Washington University School of Law.
In addition, freedom of information laws are often publicly and politically popular. “Most state governments right now are very keen on transparency, so you don’t want to be seen as trying to roll that back,” said Emily Grannis, a legal fellow at the Reporters Committee for Freedom of the Press. She added that most sunshine laws have exemptions that scientists could use to protect their private information, making modification of current laws unnecessary.
So-called deliberative process exemptions give decision makers some degree of privacy for frank discussions. In effect, the data that leads to a decision is on the public record, but the internal discussions among policy makers leading up to those decisions are not. “That could be a very useful exemption for university professors,” Grannis said. Preemptive disclosure of relevant data is another possible way to limit some of these overly broad information requests. “My suggestion is that the federal government get together and try to prepare some guidelines on what should be expected of scientists when they accept a grant or contract to engage in scientific activity for publication,” Morrison said. “In the end, the government would adopt a set of protocols that would require that significant materials be made public as a condition of obtaining a federal grant or contract.”
The federal government is already moving towards requiring more disclosure of raw data. A memo from the White House Office of Science and Technology Policy from February 2013 outlined its Open Data initiative, which required that all federal agencies develop a plan for making accessible the raw data of research published with federal funds. Part of that memo spells out how documents like personal communications aren’t considered data and thus are not subject to public access.
One of the most contentious issues was whether the intent of the requestor should play a role in what is or isn’t disclosed. “I’d suggest that there’s no public interest in disclosure when there’s credible evidence that the primary purpose of a request for records is to do something illegal, to harass and encourage violence, when the only or overwhelming purpose and usefulness of a disclosure is to embarrass, [or] when the records are raw preliminary research data that could easily be taken out of context, misused and cause harm,” said Jamie Lewis Keith, general counsel for the University of Florida.
Halpern disagreed. “Open records request[s] really should be complied with regardless of intent,” he said. “When you start to figure out what somebody is looking for, it’s a little bit of a slippery slope.”
Grannis concurs and cautioned that changing public disclosure laws to incorporate a requestor’s intent would be unprecedented. “The reason we don’t look to motive is so the government doesn’t have to make a decision about whose motives are pure or whose speech is more valuable,” Grannis said. “We don’t want the government telling us whether we need to know something.”
She added that changing such laws in such a way could have a broader effect on freedom of speech. “So we need to make sure that there’s no chilling effect on what scientists are willing to say in research, but at the same time you don’t want to chill the public either,” Grannis said. “You don’t want to create a situation where the public is afraid to ask for information, or is afraid to talk about a particular topic, because in general we take the view that more speech is better.”
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