Are There Limits to FOIA Access to Research E-Mails?

October 14, 2015

A war has broken out over academic emails — a war seemingly between academic freedom and the public's right to know. The smoking emails have prompted scandals galore, and produced stories.

The issue got an airing in a plenary session October 9, 2015, at the Society of Environmental Journalists' Annual Conference, a panel discussion moderated by SEJ Freedom of Information Task Force Chairman Tim Wheeler. But it is hardly settled.

L-R: Mike Soraghan of EnergyWire, Gary Ruskin of U.S. Right to Know, Michael Halpern of Union of Concerned Scientists, Katharine Hayhoe of Texas Tech, moderator Tim Wheeler, The Baltimore Sun.
Photo courtesy of Cindy MacDonald.

The Freedom of Information Act (FOIA), by giving journalists and the public a look at public documents, has long been a key tool for holding government accountable. Emails can be public documents when they document public business at public institutions, or government research, or government-funded research. Even research at government-funded institutions. But where do we draw the line?

Stories based on academic email, stories raising profound issues about the integrity of particular scientists and their work, have repeatedly made headlines in environmental news media over the last several decades.

The stories have come from straight reporters and from both sides of the ideological fence. They have run the gamut of topics: climate change, genetically modified organisms, fracking earthquakes, and pig farms.

Transparency is being weaponized, to paraphrase one partisan in the email wars. One side says FOIAd emails expose bought science and deception of the public. The other side says FOIA requests for emails are being used to harass and silence them.

Item: FOIAd emails exposed astrophysicist and manmade-climate-change denier Willie Soon's failure to disclose that his articles arguing that climate change was caused by solar variation had been financed by fossil energy industries — violating journal disclosure policies. The New York Times published the story February 21, 2015.
Item: Climate scientist Michael Mann, originator of the "hockey stick" graph showing human influence on climate, was subject to repeated legal attacks seeking his email on the grounds that his science was based on some kind of imagined wrongdoing. Repeated independent inquiries totally exonerated him.
Item: FOIAd emails revealed efforts by fracking multibillionaire Harold Hamm to get the University of Oklahoma to suppress evidence that drilling waste injection was causing earthquakes. Journalist Mike Soraghan brought this to light for EnergyWire.
Item: Emails and documents obtained by the Boulder Weekly and Greenpeace showed that research by the Leeds School of Business at the University of Colorado-Boulder had been influenced by pro-fracking groups.
Item: FOIAd emails showed that some researchers supporting genetically modified organisms (GMOs) in agriculture were getting undisclosed money from GMO companies and food-industry groups and coordinating publicity about their research with them.
Item: Climate scientist Katharine Hayhoe told SEJ's October 9 session of being targeted several years ago not only with harassing email FOIAs, but waves of hate mail because she spoke publicly of mainstream climate change science. She has emerged unscathed.
Item: North Carolina epidemiologist Steve Wing in 2002 published research linking industrial hog operations to various illnesses via air and water pollution. The illnesses disproportionately affected low-income people and people of color. The North Carolina Pork Council, not liking the research, filed a voluminous open records request not only for Wing's emails and draft reports, but for the identities of study subjects to whom he had promised anonymity. Wing and the University of North Carolina resisted in court, but ultimately settled.

Do journalists and the public have an unlimited right to read emails by researchers and professors under state and federal freedom of information laws? Are scientists above questioning about a possible conflict of interest that could affect the results of their research? The bitter and personal tone of the debate belies the important principles on both sides.

Journalists need strong Freedom of Information (FOI) laws to do their jobs — much as scientists need microscopes and mass spectrometers. Scientists also need intellectual and academic freedom to do their jobs. While most scientists work with integrity, cases of scientific conflict of interest abound — research results that support the political or regulatory agenda of funders (whether industry or environmental groups). Emails, often acquired via FOIA requests, have documented many a journalistic exposé of such "conflict of interest," advancing public knowledge and promoting public health. Government watchdogs often fail to bark — so citizen groups and muckraking journalists are needed to protect the public.

But what are the limits? FOI laws, both state and federal, largely apply to official records of government agencies. Is a university or research institute a government agency? — Or only if it is publicly funded? What if the public funding is partial or minor or incidental? Are ALL records FOIAble? — or only those that involve government funding? What records are personal, private, privileged, proprietary, or protected as part of a deliberative process?

Most journalists consider their own notebooks to be sacred and private — some have gone to jail rather than give them up to prosecutors. The raw ore from which journalism is mined includes all kinds of embarrassing quotes, inaccurate statements, and unchecked factual assertions. As well as the names of confidential sources. Do scientists have any equivalent private sanctum in their lab records and discussions with colleagues?

Neither scientists nor journalists are perfect at keeping non-work emails out of their daily email streams. In addition to correspondence with sources and grantmakers, email may include shopping lists, ticket requests, and the occasional mash note. Is there a category of email which is truly private and none of anybody's business?

Some Back-story

There's a lot of back-story to this issue. In November 2009 an unknown hacker stole emails of climate scientists from servers at the Climatic Research Unit of the University of East Anglia. Some candid and embarrassing private messages were publicized by climate-denial bloggers just before the Copenhagen climate treaty meeting in an effort to discredit the solid consensus of climate scientists. The effort failed to discredit any science, but did do political damage. Climate scientists were outraged. The hackers who stole the emails were never caught.

Then in April 2010, ultraconservative Virginia GOP Attorney General Ken Cuccinelli, a climate-change denier, demanded that the University of Virginia turn over records related to grants to climate scientist Michael Mann (maker of the "hockey stick" graph). This effort to discredit Mann failed also, when academic panel after academic panel found nothing wrong with Mann's work. But the effort by deniers to discredit him persisted, ultimately turning to a quest for university emails. The University of Virginia went to court opposing the records request, and ultimately prevailed in the Virginia Supreme Court.

In the final appeal of that case to the Virginia Supreme Court, journalists were on the side of the climate-change deniers, arguing for greater access to emails. The Reporters Committee for Freedom of the Press (RCFP), joined by 17 other media organizations, filed a friend-of-the-court brief November 12, 2013, supporting the case of the American Tradition Institute (which had inherited the quest) against the University of Virginia.

The exposé of scientist Willie Soon's undisclosed conflict in February 2015 was also based on emails. Soon is affiliated with the Harvard-Smithsonian Center for Astrophysics — which is notionally a federal agency because of the Smithsonian link, and subject to FOIA.

Outrage over Soon's behavior soon prompted members of both House and Senate to issue letters demanding funding information from other climate-change skeptic and scientists. That, in turn, prompted push-back from both the targeted academics and universities, asserting that the demands for emails by Congress were an unwarranted infringement of academic freedom. Conservatives piled on, crying "witch hunt." One of the requesters, Rep. Raúl Grijalva (D-NM), eventually walked back his request, saying he had over-reached.

The Union of Concerned Scientists in February 2015 published a report titled, "Freedom to Bully: How Laws Intended to Free Information Are Used to Harass Researchers." That report cited many more cases where records and email requests, often under FOIA, had been used to cripple or embarrass scientists in many research areas (not just climate). The report, issued by UCS' Center for Science and Democracy, said that while FOIA was essential to democracy, its abuse was "a problem that cuts across disciplines — and ideologies."

SEJ and the WatchDog have joined with UCS a number of times in the past on FOI issues — most recently on the muzzling of EPA science advisors in communications with the news media. SEJ has not yet taken any position on the specific issue of emails.

GMO Emails Flap

All the controversy only flared higher when it came out in February 2015 that an anti-GMO group had in January made an open-records request for emails from some 14 scientists at four universities, looking for correspondence with GMO-industry companies like Monsanto. The group, U.S. Right to Know (US-RTK), had been battling the multimillion-dollar campaign by major food industry groups to oppose GMO-labelling bills and ballot measures in various states. That group's director, Gary Ruskin, was a panelist at SEJ's October 9 plenary.

That move was chronicled by Keith Kloor in the AAAS Science magazine blog Science Insider in a February 11 post. Kloor had been outspoken elsewhere about the weakness of scientific evidence that GMO foods might be unhealthful to eat. He had called those in the pro-labeling movement concerned about health effects "the climate skeptics of the left." Kloor's writing had included criticism of how journalists covered the GMO debate.

The controversy grew. US-RTK expanded its FOI requests to include emails from some 40 researchers, and the push-back from researchers began to get coverage. Kloor chronicled some of the developments in another article August 6, this one in the news pages of the prestigious science journal Nature.

By this time, University of Florida-Gainesville researcher Kevin Folta had come into focus publicly as one subject of the email inquiry. Folta is a plant scientist and public advocate of GMOs. Records given by the university to US-RTK "do not suggest scientific wrongdoing ... but they do reveal his close ties" to GMO giant Monsanto, Kloor reported.

"He adds that he has never accepted honoraria for outreach work," Kloor went on, "and that the University of Florida does not require him to disclose travel reimbursements. But the emails show that Folta did receive an unrestricted US$25,000 grant last year from Monsanto, which noted that the money 'may be used at your discretion in support of your research and outreach projects'."

Kloor's piece was followed on August 13 by a post on the PLoS blog PLOS Biologue, by hard-digging environmental investigative reporter Paul Thacker and NYU journalism professor Charles Seife. They decried a "backlash against transparency" and said that the UCS had gone too far in objecting to the use of FOIA requests as a harassing tactic. Thacker and Seife cited a number of examples where emails had revealed real problems with the integrity of research. "Requests under FOIA for personal correspondence are not just appropriate, but crucial to ensuring transparency," the authors wrote. They acknowledged that information requests were sometimes misused, but argued that the benefits of transparency, in the end, outweigh the costs.

That post prompted an explosion of outraged comments on the PLoS blog, some of them from non-scientist ideologues, and some credited to noms de plume rather than proper names (these are the ones still online). The loudest outrage came from Folta — who had actually not been mentioned by name in the original post.

Folta's indignation reached full cry in a post he did August 16 on the blog Science 2.0 entitled "Transparency Weaponized Against Scientists." Folta accused the writers (who did not name him) of conducting a "smear campaign," and said he did not consider the Monsanto donation to his outreach program a "financial relationship." Folta has posted a further defense against implied criticism here.

The explosion of criticism prompted PLOS Biologue to unpublish the August 13 Thacker-Seife post. The blog left up the comments criticizing the removed post. Of course, almost nothing is ever really unpublished on the web, and you can see the removed post here.

UCS fielded its own response to the Thacker-Seife post, in a more measured and thoughtful post by Aaron Huertas on UCS's own The Equation blog. It accused Thacker and Seife of inaccuracies, especially in their characterization of the "Freedom to Bully" report. But the barrage of inaccuracy claims from all sides (including Folta) generally seem less intended to secure the truth than to discredit opponents in the debate. Most of the real inaccuracies called out by anyone are minor compared to the main arguments and have been willingly corrected already.

What Are the Solutions?

Huertas' piece was one of the few that began approaching a solution to this problem: a thorny conflict of important values. But UCS and Thacker-Seife seem to agree on a few things, although you would hardly know it by reading what they have published. One is that disclosure of financial dealings that could pose a potential conflict of interest has increasingly become a norm in the world of scientific journals in recent years. While that is true, the disclosure policies of journals may have loopholes and some journal authors do violate them. But it is a start.

The UCS suggests in several places that proactive, voluntary disclosure of potential conflicts by the scientists, journals, and research institutions is a solution desired by all. The WatchDog hears no disagreement on this, and awaits patiently the day when it will come to pass.

But that ideal has yet to be met in many cases that environmental journalists write about. A scientist can get a $25,000 grant from a corporation, but not acknowledge it as funding. So the more coercive route of FOI requests must still have a role if the public is to be served by good science and good journalism. One could hope that narrow tailoring of such requests by journalists (at least) would make them less annoying and burdensome. Even though many of the partisans in the academic email fight take absolute positions, some middle ground may be where conflicting ideals can be reconciled.

What are the solutions? Journalist Mike Soraghan, at SEJ's October 9 session, said he did not think the Freedom of Information Act needed any changes.

But Michael Halpern, who wrote the Freedom to Bully report for the Union of Concerned Scientists, suggested an array of fixes that may not involve amending FOIA. These include:

Guidelines from federal grant-making institutions like the National Science Foundation and the National Institutes of Health, specifying rules for disclosure by researchers of possible conflicts.
Guidelines from universities and other academic research institutions, laying out what types of information should be disclosed in response to public records requests and what should be protected. This, obviously, might vary according to the type of university (e.g., public or private), type of funding, or type of information.
Guidelines from university associations and professional bodies.
Reconsideration of individual state open-records laws to ensure that exemptions are neither too broad nor too narrow.
Mechanisms for clear separation by researchers between professional and personal correspondence. Separate email accounts are one way to do this.

Additional Sources