In a dangerous and growing trend, individuals and organizations misuse federal Freedom of Information Act (FOIA), or state open records equivalents, to attack scientists.
Open records laws are meant to promote government transparency by allowing citizens to request copies of administrative records, but they’re also used as a tool to harass scientists.
Politically and ideologically motivated groups, which are often funded by the fossil fuel industry, will request reams of documents, including private emails, from researchers who receive public funding.
These scientists must then potentially review and produce thousands of documents — sometimes in a matter of days — or mount a legal response explaining why the requests are invalid.
What’s at Stake
Individuals and groups who use invasive FOIA requests to make scientists disclose private information claim they do so to further transparency in science.
In reality, the scientific peer review process serves this function. Researchers engage in true scientific transparency through the sharing of their completed study results, methodologies, and datasets.
People who misuse open records law are looking for information that can be taken out of context and used to attack researchers or mislead and confuse the public.
Other times, people make open records requests to hinder scientific progress by diverting time, energy, and resources away from research by forcing scientists to comply with the time-intensive demands of legal review and litigation.
How We’re Taking Action
We defend climate scientists and their research by filing legal briefs in support of scientists who are subjected to unnecessary FOIA requests.
We also publish resources, such as our report, Research Protections in State Open Records Laws: An Analysis and Ranking, 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 to help scientists and attorneys understand the application state and federal open records laws to scientific research.
If you’re a scientist, learn how to protect yourself from these attacks.
Essential Reading & Resources
This report 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.
It 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 report is intended to help scientists and attorneys understand the best way to manage and respond to a Freedom of Information Act (FOIA) request, and encourage policymakers to consider the special issues of scientific transparency and enact policies that protect these important materials.
Here’s what we advise on professional correspondence and record keeping:
- Conduct professional correspondence in a professional manner. It is important to remember that scientists’ emails may be FOIAed, otherwise disclosed due to legal actions or even hacked.
- Do not use professional email accounts for personal emails and vice versa due to the risk of FOIA requests and similar inquiries. FOIA only applies to government records, so separating personal and professional emails reduces the likelihood that your personal correspondence will be affected by a FOIA request or other investigation.
- Scientists should ensure they are complying with document and data retention requirements. The applicable legal requirements depend on: the scientist’s employer, the scientist’s funding sources, and whether litigation is likely. Employees and consultants of public institutions, including government scientists and public university researchers, should retain all public records (the precise determination will vary by state, but generally, documents relating to public business).
- Similarly, public funding may require certain recordkeeping: for example, National Science Foundation grants stipulate that research data, including databases, must be shared.
- Finally, documents must be retained if litigation is “reasonably anticipated,” meaning there is credible information that a lawsuit may be brought at some point (more on this below). Even if there are no strict retention requirements, it is advisable to keep documents for at least a few years. Anyone can be made to look bad when files are missing.
If you find yourself under legal attack:
- Scientists under attack should first remember that other scientists have been through this before and come out the other side.
- Scientists under legal attack, or who believe an attack is likely, should promptly contact their institutional counsel or groups such as the Climate Science Legal Defense Fund, or both. In addition to providing legal resources, we also provide emotional support by connecting scientists under attack to others who have successfully navigated such situations. We can also assist in situations where the scientist’s legal interests differ from the institution’s own legal interests.
- Once litigation is reasonably anticipated, there is a legal requirement to make a good-faith effort to preserve all documents relevant to the dispute, which can include even Facebook or Twitter messages, or documents stored on a personal computer. Generally, an organization’s attorney will issue a “document hold notice” when necessary, which provides details on what and how to preserve.
- If scientists must produce documents because of a FOIA request or other legal obligations, they should work with their counsel to ensure that only necessary information is released. Personal information is very likely protected and, depending on the applicable state and federal laws, it should be possible to also protect aspects of scientists’ academic work and other intellectual property.
Note: The above pertains only to U.S. laws and does not constitute legal advice.
If you are a scientist who needs legal advice, please contact us.