Transparency and accountability in government are essential to democracy. The right of citizens to information about how public decisions are made is precious, and open records laws, such as the 1966 Freedom of Information Act (FOIA), are crucial to protecting that right.
However, the rights guaranteed by open records laws can be abused. As our 2015 report Freedom to Bully shows, open records requests are increasingly being used to harass and intimidate scientists and other academic researchers, or to disrupt and delay their work. Academic institutions and other involved parties need to be prepared to respond to these requests in a way that protects the privacy and academic freedom of researchers while complying with the law and respecting the public's right to information.
The impact of harassment on research
The use of open records laws to harass researchers emerged with the growing use of electronic communications. Conversations that used to take place over the phone or in person are now conducted by email, a format that leaves a permanent record. When these email discussions are made public through records requests, the privacy that academics have long enjoyed in discussions with colleagues is compromised. This can have a chilling effect on the frank exchange of ideas and constructive criticism, a crucial part of the scientific process.
Abuse of open records requests can also hinder researchers simply by hijacking their schedule. Complying with requests may take dozens or even hundreds of hours of researchers' time, putting their real work on hold or on the back burner for a long while. This may often be the main purpose of such requests.
During the Deepwater Horizon oil spill, researchers at the Woods Hole Oceanographic Institution (above) volunteered their time and equipment to determine the rate at which oil was flowing from the ruptured well. Yet, BP subpoenaed more than 3,000 confidential emails from these researchers, including personal correspondence, under the guise of verifying the accuracy of their research. Photo: Tom Kleindinst, Woods Hole Oceanographic Institution
A problem that cuts across disciplines—and ideologies
Abuse of open records requests has affected researchers in a broad spectrum of fields:
- Climate scientists. In perhaps the most notorious case of open records abuse, the American Tradition Institute (ATI) used a Virginia FOIA request as part of a campaign of harassment against climate scientist Michael Mann, complementing Virginia Attorney General Ken Cuccinelli's attacks on the university. Climate scientists have also been the target of open records harassment across the United States as well as the United Kingdom and Australia, where the volume of requests amounted to a "denial of service" attack on the government's Department of Climate Change. (Scientists who support the climate consensus have not been the sole targets: In 2009, Greenpeace used an open records request against contrarian scientists Pat Michaels and Fred Singer.)
- Tobacco researchers. The tobacco industry was a pioneer in the abusive use of open records requests, targeting Georgia Medical College professor Paul Fischer in the 1990s for his research on the impact of Camel marketing campaigns on children. Researchers in California, Massachusetts, and more recently Scotland have been targeted for similar research over the years.
- Historians. In 2011, the Wisconsin Republican Party sought emails from University of Wisconsin history professor William Cronon in response to his writings on the state's caustic conversation around collective bargaining rights. Labor studies professors from three Michigan universities were also targeted around the same time.
- Environmental chemist Deborah Swackhamer of the University of Minnesota, doing research in the 1990s on concentrations of a toxic chemical in the Great Lakes, was saddled with "the largest open records request ever made in Minnesota" in an apparent effort to shut the research down.
- Occupational health scientist Michael Hendryx, who had investigated connections between mountaintop removal and adverse health effects while at West Virginia University, found himself on the receiving end of multiple open records requests from the Highland Mining Co. starting in 2012.
- Epidemiologist Steve Wing of the University of North Carolina roused the ire of the North Carolina pork industry in the 1990s with his studies of the disproportionately harmful impacts of hog farms on low-income communities of color.
- Researchers who use animal subjects have seen an "exponential increase" in open records requests from animal rights groups; such requests have become so pervasive that a group of scientific societies in fields that rely on animal research have published a guide for researchers. Similarly, an ecologist studying the impact of feral cats on wildlife in Hawaii became a target after his 2012 paper showed that euthanasia was more effective than trap-neuter-release programs.
- A legal scholar of religious freedom at the University of Virginia, Douglas Laycock, was targeted by students when he supported Hobby Lobby in its suit seeking a religious exemption to the Affordable Care Act's provision requiring employers to provide contraceptive coverage.
- North Carolina poverty researcher Gene Nichol was the target of multiple open records requests from the Civitas Institute, a conservative think tank, which required him to review thousands of emails.
Drawing the line
It's important—though not always easy—to ensure that efforts to guard against harassment don't also obstruct legitimate requests. Some laws go too far in protecting researchers: Pennsylvania's open records law, for instance, includes an overly broad blanket exemption for Penn State University, which created unnecessary hurdles for reporters working on the Penn State sex abuse scandal.
Universities often unprepared
The abuse of open records laws is a relatively new problem, and universities where targeted researchers work may be caught off guard by it. The report offers examples of several cases in which responses were unnecessarily delayed or complicated because the institution did not have a clear and proactive policy for handling requests, or because the researcher was unaware of that policy.
To help researchers cope with intrusive open records requests and other forms of harassment, UCS has published a guide, Science in an Age of Scrutiny.
Solutions: a balancing act
As awareness of the problem grows, a conversation about solutions has begun. Higher education experts and legal scholars have recommended that:
- Universities should clarify their policies and procedures with regard to open records requests, ensure that their employees understand these policies, and make sure they have considered how they will respond when overly broad requests are used to harass their researchers.
- Professional societies should recognize that the interests of universities are not always the same as those of individual researchers, and offer legal assistance to help researchers protect their privacy.
- Legislators should examine their open records laws and ensure that they include appropriate exemptions that will protect privacy and academic freedom without compromising accountability.
- The National Academy of Sciences and other research organizations should provide guidance to legislators and universities on what should be disclosed and what should be protected.
- Finally, open records requests should not be the primary option for those who seek to understand the public's business.
If lawmakers, universities, and researchers develop a shared understanding of what they should disclose and a system for proactively doing so, they can avoid costly and time-consuming lawsuits and other battles. And that, in turn, will allow researchers to get back to what they are suppoed to be doing: learning more about our world.