The federal Freedom of Information Act (FOIA) and state open records law equivalents — designed to promote transparency in government — are increasingly misused by groups seeking to harass publicly funded scientists and inhibit progress in critical areas of research such as climate, biomedicine, and epidemiology.
Legal protections for scientific research materials vary widely in the United States, according to a new report by the Climate Science Legal Defense Fund (CSLDF), leaving scientists and universities vulnerable to malicious open records requests and endangering the scientific endeavor.
“Research Protections in State Open Record Laws: An Analysis and Ranking,” published on Tuesday, is the first in-depth analysis of the existing protections for scientific records, and their applications, in each of the 50 states and the District of Columbia.
“Our goal is to help scientists and attorneys understand the best way to manage and respond to a FOIA request,” said Lauren Kurtz, director of CSLDF. “We also want policymakers to realize the importance of protecting scientists’ private communications, preliminary drafts, and other unpublished research materials.”
The report explains each state’s treatment of scientific records and assigns the state a letter grade from A to F accordingly. The report includes statutes, cases, decisions, and other pertinent legal information and examples of how groups have tried to use open records laws to antagonize scientists.
The analysis reveals a lack of clarity and consistency in the treatment of scientific records among states. Just three earned an A — Delaware, Maine, and Pennsylvania — for their efforts to protect researchers at state universities and all scholarly records from open records requests.
A majority of states earned a C or D. These 31 states generally recognize that research materials should be treated differently and have instituted some protections, although these may be idiosyncratic or ambiguous.
The four states that earned an F — Arkansas, Montana, New Mexico, and North Carolina — have no available open records protections.
“There’s a real lack of uniformity in the protections across states,” said Susan Rosenthal, a staff attorney at CSLDF. “Even just one or two words can make a huge difference in what will be protected from disclosure. So it’s crucial that scientists, lawyers, and policymakers know exactly what protections exist in their particular state.”
The federal FOIA law, enacted in 1966, and state equivalents, some of which date back to the 1800s, allow taxpayers to request copies of administrative records to understand how government works. Open records laws can promote transparency and integrity in science but, when it comes to research records, they can do more harm than good.
Under the current statutes in many states, publicly funded scientists’ research emails can be released in response to an open records request, along with preliminary drafts and other pre-publication materials, such as peer review correspondence. These materials traditionally remain confidential to foster a candid exchange of ideas and critiques and to avoid chilling the free debate necessary for scientific advancement.
“Open records laws were written before scientists used email to discuss their research,” Kurtz said. “Now there’s a massive paper trail related to the deliberative process of science that previously wouldn’t have been transcribed. I doubt lawmakers intended for these informal communications to become part of the record.”
The report documents the impact of bad-faith open records requests. Scientists can become mired in protracted litigation over what materials are subject to disclosure. When their emails are released, information — including scientific jargon and “devil’s advocate” debates — can be taken out of context and used to try to discredit and intimidate scientists. Some of these researchers decide to stop working on topics such as climate that are politically charged.
“Many open records requests for scientific materials are politically-motivated and intended to stifle research,” Kurtz said. “As a result, states need to consider the special issues of scientific transparency and enact policies that protect these materials from indiscriminate disclosure.”