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Is The Freedom Of Information Act Stifling Intellectual Freedom?

This article is more than 8 years old.

Have you heard of Kevin Folta? He’s a professor at the University of Florida and the lead actor in an ongoing set piece pitching (some) journalists against (some) scientists. They’re arguing over four letters that form the core of transparency about what our government is up to: FOIA, or Freedom of Information Act, the federal version of which turns 50 next year. Folta ultimately cast himself in this drama as the beleaguered scientist who just says what the GMO data tell him, independent of industry influence. His purported story arc is that politicized, biased journalists unfairly attacked his character after a politically motivated FOIA request revealed a previously undisclosed relationship with Monsanto.

In the background of this center-stage circus, journalists and scientists have been wrangling more broadly over FOIA, engaged in sometimes earnest, frequently snarky, and often ugly disagreement over what, exactly, this freedom looks like for scientists on the public payroll who get slammed with requests for information.

Folta is not the best casting choice for the part of “besieged scientist fends off bullying press from FOIA attack.” Frankly, if he’s got it together enough to earn a PhD, run a lab, get himself quoted in innumerable mainstream news stories about GMOs, chair a department, and run a faux podcast in character as someone else, he should have been able to foresee that any relationship with Monsanto was a relationship he needed to reveal, upfront, always, whenever asked. Instead, he chose to use evasive language to describe his alleged non-relationship with ‘Big GMO’ and then found himself entangled in a wide FOIA net thrown by the anti-GMO advocacy organization Right to Know (RTK).

RTK targeted several scientists with their FOIA request, all based on the scientists’ apparently pro-GMO public statements. Folta turned out to be their biggest catch. When asked, he’d protested on several occasions that he had nothing Monsanto-related to disclose, always carefully adding in modifiers to make his statement factually accurate despite its sin of omission.

Turns out, he had relationships with and money and paid travel from Monsanto folks, including $25,000 in funding to the university for Folta to lead educational workshops about GMO-related science. According to the New York Times, in one of the FOIA-found emails, Folta wrote to a Monsanto executive that he was grateful for the opportunity and promised a “solid return on the investment.” Yikes.

GMO conspiracy buffs had their ‘gotcha’ moment, and they are enjoying the hell out of it. Their favorite word to use about the revelation is “shocking,” a low threshold for shock that might explain why they find long chemical names and technology so terrifying.

From a public perception viewpoint, Folta was wrong not to offer full disclosure—not just disclosure within the lines of university requirements and the letter of the law, but disclosure that precludes such ‘gotcha’ moments. He eventually did so, but it was too late. His revealed connections after his previous denials made him look bad in a way that may be irrecoverable regardless of any pure intentions, especially given his subsequent resistance to mea culpa.

He’s not alone in being busted—Big Organic’s got its own version of Folta, as Eric Lipton noted in his NYT article—but Folta kicked up a lot of dust, and for whatever reason, no one seems to want to engage in FOIA target practice against people in the pocket of Big Organic.

Now, Folta’s just announced that following on the blowback—some of it fair, much of it waaaaay beyond the pale, as always from some quarters threatening home, family, job—he’s bowing out of public advocacy of science. The brouhaha around whether he’s been martyred or maligned continues unabated. Many “pro-science” folks mourn his departure from public discourse and claim that he was silenced by the viciousness of the opposition against him, including journalists.

I understand all too well the potential depth of that viciousness (you can always read the comments on my post here for examples). But Folta unwittingly played into the ‘anti’ hands with his failure to disclose openly and often all industry relationships and with his insistence in the aftermath that he'd precisely toed the line of legality.

He gave the 'antis' exactly what they wanted. It confirmed their suspicions of conspiracy and gave them their ‘gotcha’ moment, and those suspicions will now shadow anyone else who comes down on the side of science and GMOs. And the drawn-out Folta fracas distracts from some real issues that academics need to grapple with if they engage in controversial, politicized scientific arenas.

When you have a hammer

Like a hammer, FOIA can be used for harm or for good. And because the wheels of academia and science grind a lot more slowly than vengeance seekers traveling the internet superhighway, academics at public universities seem to be playing catchup.

A few scientists who work for public universities (and thus fall under the government umbrella) have already been the target of ‘weaponized’ FOIA. Naturally, vulnerable researchers and the Union of Concerned Scientists (UCS), an advocacy organization, are wary and fearful of the consequences of unrestricted use of FOIA, or what UCS calls “freedom to bully.” They make the argument that the risks associated with unfettered FOIA—including inhibiting research, silencing controversial voices, and dampening academic freedom—weigh heavily against the benefits.

These threats and real-life examples have led to calls for various limits on how FOIA is applied. But this law exists for demonstrable reasons, as the many lies and deceits—and FBI surveillance of John Lennon—it’s helped to uncover illustrate. Scientists, even those breathing rarefied air from ivory towers, benefit from these revelations, just like anyone else. The balance here must tilt toward the rights of the many over discomfiting (a little or a lot) the few.

But discomfiture isn’t the only consideration. The real tension in the balance is somewhat ironic: How much will FOIA burdens interfere with intellectual freedom for the few scientists who speak out on controversies? Will fear of FOIA silence researchers who otherwise would speak out, as many will now argue happened to Folta?

FOIA and science

Making public statements in a field of controversy, you see, can be like handling unexploded ordnance. Here’s exhibit A, via a Wired piece by Alan Levinovitz, to underscore that possibility, in which Gary Ruskin, co-founder and co-director of RTK, describes the rationale for selecting scientists for FOIA requests:

Ruskin asserted that the scientists had been selected for FOIA requests due to their involvement with GMO Answers, an industry sponsored website that posts answers to public questions about the safety of GMOs, or genetically modified organisms.

After it was pointed out that some of the scientists had no involvement with GMO Answers, Ruskin apologized for the error and stated that some scientists had also been targeted for making public statements against California Proposition 37. (italics mine)

Alison Van Eenennaam, a cooperative extension specialist at UC-Davis, was another scientist on the receiving end of RTK’s FOIA request. In her role at a public university, a lot of her work involves engagement with industry; she writes, “This includes many farmers and farm groups, all of whom are in the agricultural ‘industry’. Some are in the dairy industry; some are in the beef industry; and some are in the organic industry. Some are in the animal health industry.” That is her job.

Ruskin’s FOIA blast, targeting her and many others, requested

all correspondence (letters, emails) written or received since 1/1/2012 to or from me and to or from any staff or employees of any of the following organizations: Monsanto, Syngenta, Bayer or Bayer Crop Science, BASF, DuPont or Pioneer, Dow or Dow AgroSciences, Ketchum, GMO Answers, Biotechnology Industry Organization, Council for Biotechnology Information, Grocery Manufacturers Association, Fleishman Hillard, Ogilvy&Mather, Winner&Mandabach, Bicker, Castillo&Fairbanks, and the NGO No on 37.

It also read

I request that you waive all fees in the public interest because furnishing of the information sought by this request will primarily benefit the public.

According to her account, Van Eenennaam spent a couple of days pulling together the 75,000-plus emails from that period, and more than 99.9% were unrelated to the request. She then worked with a UC legal analyst to copy over the FOIA-compliant emails, and the entire process then became the problem of the UC legal department, which is, as a reminder, also taxpayer supported. I’m not quite sure what the benefit in my interest as a member of the public was from all of this.

Van Eenennaam was caught off guard. But the time to be surprised about such requests is over: Scientists need to be on their guard and harness this digital world for themselves, to prepare in real time for a possible request. I see little conversation around a pre-emptive approach to the problem, so my starting suggestion is as basic as having a dedicated folder/file for all emails with industry contacts. In addition to pre-emptive filing and archiving on the part of individual researchers and university employees, universities obviously need to have legal support in place, as UC-Davis does.

Van Eenennaam expresses a natural concern about what no doubt feels like a sudden—and, let’s face it, accusatory—intrusion for doing her job:

... there is something deeply intrusive about a third party requesting years’ worth of email correspondence. I guess I am not alone in academia in keeping all of my email correspondence, personal and professional, in one account.

But those personal emails and private exchanges should be excluded from compliance with such requests, and in her case, they seem to have been. FOIA isn’t just a free-for-all. For example, it does offer some legal shielding in these exemptions: 4 (trade secrets), 5 (interagency memoranda or letters), and 6 (personal privacy).

Based on my own informal polling, personal experience over the last 20+ years in academia, and the current round of contentious exchanges between scientists and journalists, researchers have, for the most part, lacked training and the infrastructure to manage a FOIA request. My informal polls kept a steady 9 out of 10 who have had no such training. I know that in my time doing research at three academic institutions, I never once received any; indeed, I knew about FOIA only because of my experience in journalism and as a government public information officer (PIO).

Just as our agency did for its PIOs, universities need to step up, orienting every incoming lab worker, researcher, postdoc, staff member, and primary investigator about FOIA and best practices for archiving in anticipation of a request. An established support mechanism also will help to avoid, at a minimum, a pointless muppet flail and at worst, even more wasted hours and taxpayer dollars.

Because state-level open records laws vary, the peripatetic nature of academic life matters, too. The federal law will be the same, of course, but a training that applies for Texas might not be transferrable to one for Illinois, for example. One of my poll respondents who had received FOIA training did so because he works for a federal agency. It might be that federal orientations could be translated fairly easily to the university research environment.

Such orientations should include best practices about disclosing conflicts of interest and for industry interactions, such as using appropriate professional language when engaging with industry colleagues. Care in these interactions is the desired effect of knowing one’s conflicts of interest and having an awareness of perception. It also honors the fact that working at a public university carries with it the duties of being in the public’s pay.

All of these steps—planning, using professional language, disclosing—create a safety net that allows scientists who want to speak out publicly to make that leap. Because everything is declared, they have nothing to hide, they can speak freely, and no ‘gotcha’ moments and "shocking" accusations of conspiracy await them. In this way, both intellectual freedom and freedom of information can co-exist more easily.

Conflicts of interest: a matter of perception

Most researchers I’ve polled informally also say that they’ve never had specific training in how to make disclosures around their research, although some have and also have specific disclosure rules to follow at their institutions. And some scientists almost dismiss the relevance of conflict of interest disclosure out of hand, having the naïve idea that data will just speak for themselves, conflicts real or perceived be damned. But that’s bullshit.

“The science” does not, and really never has, spoken for itself. Like FOIA, data and results are tools that people can wield for their own purposes, to force their own agendas. To avoid the distraction of suspicion, scientists who genuinely want science to have a voice should make quite clear which baggage they bring to the discussion. Openness on all sides about potential bias clears the way to real scientific engagement.*

No one is immune to confirmation bias, to seeking out the phrases and findings that fit the framework they favor and emphasizing or even cherry-picking them. And, of course, full disclosure is critical when science is plugged into high-voltage politics. Conflict-of-interest disclosures exist not only for transparency but also so others can gauge for themselves—filtered through their own biases—how much they think bias distorts claims.

What is a conflict of interest? The Twitter discussions around that question reveal a wide range of understanding. Some think it means only direct fiscal benefit, like a salary, something that looks like a payoff. Others consider it to extend to philosophical and religious beliefs. The journal PLoS One offers a good list that comprehensively covers many possibilities.

And finally, let’s not forget the real concern for taxpayers here—that industry is wining and dining and seducing publicly funded researchers with grants and food as a way to mold them into industry mouthpieces. Pharma’s got the Sunshine Act to show who’s receiving value from industry associations. Its effectiveness remains to be determined. But rather than lay the greater part of the burden of revelation on the shoulders of academic staff at our taxpayer-funded universities, would it be better to shift some of that burden over to industry in the form of transfer-of-value reporting?

*Relevant disclosures: I am both an academic scientist and a journalist, have previously written on genetically modified organisms, and have taken a public position on GM labeling. ETA: I believe that the right to open records is critical, that Folta was in error in not disclosing, and that academics who are fearful that FOIA will stifle their intellectual freedom can take steps of pre-emptive disclosure, records management, and ensuring university resources to preclude attempts by those who seek to use FOIA as a political weapon.

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