TRANSPARENCY TUESDAY: Universities’ scientific research goes under the open-records microscope

Skeptics who question the conclusions of scientific studies have discovered a powerful tool in state open-records laws. University researchers increasingly are finding themselves defending the integrity of their work against critics who are armed with the researchers’ own data and notes.

A pair of recent high-profile cases on opposite coasts highlights the aggressive use of transparency laws to put university scientists on the defensive — and raises the possibility that universities will start pressing legislatures to exempt researchers’ files from state sunshine laws.

The University of Washington agreed to pay a stinging $175,000 in attorney fees in May as part of settling a public-records suit brought by the husband-and-wife entrepreneurs behind the “Baby Einstein” instructional video series. The plaintiffs, Bill and Julie-Aigner Clark, sued for access to the records underlying a UW study that purported to debunk the educational value of the Clarks’ products.

The case may be settled, but it is far from over. The Clarks’ attorneys say, having reviewed the university’s most recent production of research data, that it does not match what should have been an identical production made in 2007, suggesting that one of the data sets was inauthentic.

Meanwhile, a state-court judge in May ordered the University of Virginia to gather and begin turning over the papers of a former environmental sciences professor, Michael Mann, to a conservative group that questions Mann’s certainty about the phenomenon of global climate change. Mann’s research became a target of climate-change deniers after his chatty emails with colleagues were among those harvested by hackers in November 2009.

Virginia Attorney General Ken Cuccinelli continues pressing his own quest for UVA records about Mann’s work, arguing that — if proof emerges that Mann faked or exaggerated his findings — the professor may have broken the law by incorporating false information into research-grant applications. (No such proof has emerged, and Cuccinelli has even conceded that the possibility of finding it is remote.) Cuccinelli’s request for Mann’s emails and data, rejected by a trial-court judge in 2010, is headed for the Virginia Supreme Court.

These cases, and others like them, illuminate both the power of public-records laws and their usefulness to people besides journalists. But some of these untraditional uses of sunshine laws also, in the view of critics, exemplify the potential for the laws to be abused for personal grudges or politically motivated “witch hunts.”

When combined with the furor over Republican requests for professors’ emails about labor issues in Wisconsin and Michigan, cases of this kind are likely to provoke legislative discussion about curtailing open-records access to professors’ notes, correspondence and files. Journalists who depend on access to university employees’ emails for their reporting should be vigilant in the upcoming legislative sessions for mischief that could wall off access for legitimate newsgathering purposes in the name of deterring “harassment”