WHEN PEER REVIEW TURNS TO LEGAL REVIEW -- SCIENTIFIC RESEARCH UNDER OPEN RECORDS LAWS (Invited Presentation)

The scientific method is designed around the belief that skepticism is good. Results should be subjected to scrutiny through the peer review process, followed by close examination and replication by others in the scientific community.

Researchers sometimes do not realize their work may also be subject to another form of scrutiny: legal review. In particular, the federal Freedom of Information Act (FOIA) and state law equivalents have provided an increasingly common forum for taxpayers to seek review of scientific research. These laws, commonly known as open records laws, are designed to promote government transparency by allowing citizens to request copies of administrative records. But the laws have also been applied more broadly to seek records from scientists who receive public funding.

Open records laws apply to a wide swath of the scientific community: public university professors, federal agency scientists, state government researchers, and scientists who receive public grant funding (including NSF grants) can all become the subject of an open records request.

Sometimes open records requests are entirely appropriate and help further the public understanding of science. But, on the other end of the spectrum, massive and invasive open records requests can also be a thinly-veiled attempt to distract, disrupt, and intimidate legitimate researchers. Open records requests for reams of documents – including peer-review correspondence – can force the scientists to review and produce thousands of confidential documents, or mount a legal response explaining why the requests are invalid.

Open records laws vary on a state-by-state basis; some are written to specifically exempt scientific researchers and others are more open-ended. In recent years, a number of courts have weighed in on the issue, largely – but not universally – finding that scientific research deserves legal protections.