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.”
The case began in 2012 when Highland Mining Company submitted enormous West Virginia FOIA requests to West Virginia University (“WVU”), seeking virtually all documents related to the initiation, preparation, and publication of eight articles by environmental health Professor Michael Hendryx. These articles linked surface coal mining with birth defects, cancer, and other health ailments; several of the articles had been submitted in separate litigation contesting an expansion of one of Highland’s surface mines. Dr. Hendryx said that, were Highland to get all his records, “it communicates a chilling message to any academic working on any topic that the work belongs to any private company that asks for it” and “that academics cannot engage in free discourse on ideas and research development knowing that every communication will end up in the hands of private interest attorneys.” Highland, meanwhile, claimed it “needs this information in order to evaluate the validity of the studies themselves and the conclusions reached in the Hendryx articles.”
WVU initially denied Highland’s FOIA requests, asserting the documents were protected from disclosure. Highland initiated litigation, and pursuant to a court order, WVU ultimately produced over 2,000 documents, 119 of them redacted, and withheld an additional 772 documents. Another 200,000 documents were identified as “potentially responsive” but WVU argued that further reviewing and producing them would be “overly burdensome.”
Highland argued that WVU was obligated to continue its review. Highland also claimed that most, if not all, of the 772 identified and withheld documents should not have been withheld because they did not actually qualify for any exemptions. The circuit court disagreed and entered summary judgment in favor of WVU, finding that WVU had, “at this point,” met its duties of reasonable search as well as properly protected the 772 withheld documents – in part, because the circuit court found that West Virginia’s statutory “personal privacy” FOIA exemption encompassed an “academic freedom” protection. Highland appealed.
On appeal, the West Virginia Supreme Court reversed the circuit court and held that WVU could not claim any protection for “academic freedom.” While several recent decisions have held that academic research should be protected from open record requests (such as in climate science records cases in Arizona and Virginia), the West Virginia Supreme Court ruled that West Virginia FOIA exemptions “are required to be strictly construed, [and] this Court declines to create an ‘academic freedom’ exemption not specifically set forth in the FOIA.”
Even for traditionally confidential peer review commentary – which WVU argued needed to be “kept confidential in order to facilitate a candid exchange regarding a proposed article and its research” – the West Virginia Supreme Court found there were no independent protections. Keeping a strict interpretation of the West Virginia FOIA statute, the Court held that peer review “records in question are not ‘personal, medical, or similar files’ that fall under the FOIA’s ‘personal privacy exemption” because they are made anonymously and thus “contain no personal identifying information at all.”
Nonetheless, the Court held that Dr. Hendryx’s records could qualify for an existing “internal memoranda” exemption, which protects internal documents that are “both predecisional and deliberative.” Historically, this exemption has applied to documents “prepared in order to assist an agency decisionmaker in arriving at his decision” and that “reflect the give-and-take of the consultative process” through evaluating possible alternatives. The Court noted that this traditional “internal memoranda” exemption “encourages free discussion” and “insulates against the chilling effect likely were officials to be judged not on the basis of their final decisions but for matters they considered before making up their minds.”
Consequently, the Court held the protection applied to documents “generated before the publication of a research article to which it relates” and that reflect “Professor Hendryx’s deliberative, decision-making or thought process employed to arrive at the article’s conclusions and ultimate publication.” Specifically, “drafts, data compilations and analyses, proposed edits, e-mails and other communications, and peer review comments and responses relate[d] to the planning, preparation and editing necessary to produce a final published article” were held to be exempt from disclosure.
Ultimately, the Court’s protection of “internal memoranda” does cover nearly all of Dr. Hendryx’s files. However, the Court noted that there were documents at issue that “are post-decisional and/or non-deliberative” and therefore which were not eligible for protection.
In light of the fact that no documents could be protected under a separate academic freedom exemption, the West Virginia Supreme Court remanded the case back to the circuit court to consider reviewing whether “any documents withheld by WVU” were truly exempt from disclosure. Even more notably, the Court found that the “circuit court erred in finding the FOIA requests were unreasonably burdensome.” Instead, “Highland should have had the opportunity to taper its FOIA requests” and potentially receive additional documents. Finally, the Court found that the circuit court must consider whether Highland could be considered a “successful FOIA litigant,” in which case, Highland is statutorily entitled to an award of attorney’s costs and fees.
Overall, this case continues the trend of recognizing that publicly funded scientists fall under both the obligations and the protections of open record laws. However, the West Virginia Supreme Court’s work to circumscribe academic research protections to fit within existing exemptions seems a less-than-perfect fit. In particular, the lack of protection for documents that are “post-decisional and/or non-deliberative” is concerning, because any post-hoc discussions of academic research or confidential communications not proven “deliberative” are not protected under this rationale, even if they furthered academic free thought and expression.
The case, which started three years ago, also illustrates the time and financial expenses that public researchers and their institutions may face. WVU had to pay for both attorneys and outside document review managers. And Dr. Hendryx has described Highland’s FOIA requests as “[J]ust ridiculous. . . . They’re digging for whatever they can find. They’ve made me waste a lot of time.”
Lauren Kurtz is the Executive Director of the Climate Science Legal Defense Fund, which seeks to protect the scientific endeavor. For more information, please visit www.climatesciencedefensefund.org
 In particular, WVU argued that all documents requested were specifically exempted by West Virginia’s FOIA statute, because they contained: 1) information of a personal nature; 2) information protected by statute; 3) internal memoranda; and 4) trade secrets.