Lauren Kurtz

Note: The federal Freedom of Information Act (FOIA) and the state law equivalents promote government transparency by allowing citizens to request copies of administrative records. Any citizen can file a request with a government entity for copies of government documents, and the government must either produce the information or explain why it is exempt from production (for example, for national security purposes). While these laws were originally written with an eye toward policy makers and bureaucrats, in recent years, these open records laws have been used increasingly to request information from publicly funded scientists. Scientists employed by federal agencies, state agencies, or state universities, as well as scientists at private institutions who have received federal grants, have all received open records requests for information about their work. Treatment of open record requests for scientific work varies widely among the states, and between the states and the federal government. Some jurisdictions also make distinctions based on how the research was funded, e.g., a grant recipient may be treated differently than an employee, even if the work is identical. Concurrently, there also has been a push toward “open data” in science, i.e., making available a study’s methodologies, results, and conclusions. This transparency is usually a requirement for publishing a study in a peer-reviewed journal so that anyone may try to replicate the research and compare results. This differentiation—seeking openness regarding methodologies, results, conclusions, and research data while also maintaining confidentiality for other materials such as peer-review correspondence—is already echoed in many jurisdictions’ open records laws, from federal to state. However, in other jurisdictions, open records laws focus entirely on bureaucratic transparency and have done little to contemplate the special issues of scientific transparency. Given these inconsistencies, open records laws can serve as a double-edged sword when applied to publicly funded scientists. Open records requests may be used to further important principles of scientific transparency, but they also can be misused by bad actors who attempt to harass, intimidate, or try to discredit scientists whose research they dislike. This article first describes the federal treatment of open record requests and then details the four kinds of approaches used by different states: statutory exclusion, statutory exemption, common law privileges, and balancing tests. In the discussion following, the article explains how some groups have tried to use open records laws to pursue outcomes that are clearly contrary to the public interest, and how certain open records laws may be particularly prone to misuse.

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