The federal Freedom of Information Act (“FOIA”) and state open record law equivalents are designed to promote government transparency by allowing citizens to request copies of administrative records. Increasingly, they are also used to obtain otherwise private documents from government or public university scientists. FOIA laws can expose misconduct, but invasive FOIA requests can also have deleterious effects on academic research, including being used as a tool for harassment by groups seeking to distract, discredit, and even intimidate. Scientists operating in politically controversial areas, such as climate science, have been especially vulnerable to invasive requests – see here and here for examples where massive open record requests for climate scientists’ personal files were ultimately shot down by courts.
A recently published decision out of West Virginia illustrates this tension in the environmental health context. In its May 2015 opinion in Highland Mining Company v. West Virginia University School of Medicine, the West Virginia Supreme Court confirmed that a “research scientist at a public college or university is subject to FOIA because he or she is employed by a public body.” The Court also stated that West Virginia’s FOIA statute provided no protections for “academic freedom” or for confidential peer review correspondence. The Court did rule, however, that researcher files could be protected from disclosure under a different, existing protection for “internal memoranda.”