How much privacy is the scientific process entitled to? During the course of their work, researchers produce e-mails, preliminary results, and peer reviews, all of which might be more confused or critical than the final published works. Recently, both private companies with a vested interest in discounting the results, and private groups with a political axe to grind have attempted to use the courts to get access to that material.
Would it be possible or wise to keep these documents private and immune to subpoenas? In the latest issue of Science, a group of researchers from the Woods Hole Oceanographic Institution (WHOI) argue that scientists need more legal rights to retain these documents and protect themselves in court.
Just after the explosion of the Deepwater Horizon in April 2010, the researchers were asked by BP to analyze the situation caused by the oil company’s failed blowout preventer. One of the major goals was to assess the rate at which oil was spewing into the Gulf of Mexico. After concluding their research and publishing two peer-reviewed papers on the topic, the WHOI scientists were subpoenaed. BP sought access to “any transmission or exchange of information” related to their research on the oil spill.
BP claimed that these documents were necessary to “advance BP and other parties’ understanding of scientific work.” However, the company has also made public allegations about the “integrity, reliability, and reproducibility” of the WHOI findings, casting doubt on the researchers’ work.
The documents in question are so vital because the research conducted by WHOI (in particular the estimates of the flow rate) could play a large role in the amount of damages that BP will be forced to pay. The court has granted the subpoena, noting that “even if the only purpose for the analysis documents is impeachment, the WHOI analysis documents have significant probative value and BP has a substantial need for them.” In other words, BP will be able to use all the scientists' correspondence, records, and preliminary results to call their estimates into question.
This certainly isn’t the first incident in which a private corporation has sought legal action against researchers in order to force them to turn over documentation. In the 1980’s, Dow Chemical Company subpoenaed data from the University of Wisconsin that was related to the chemical Agent Orange, and a decade later, tobacco companies sought documents from researchers based at the Mount Sinai Medical School. Last year, Bayer Pharmaceuticals subpoenaed peer review comments from a study of the side effects related to some of their birth control pills.
These requests aren't limited to private companies, either. The attorney general of Virginia attempted to get access to the e-mails of a climate researcher, Michael Mann, based on unspecified accusations of fraud. After the courts threw that out, a private group also sued the University of Virginia, where Mann once worked. That suit, too, has failed, but there has already been talk of appeals, and climate researchers face freedom of information requests on a regular basis.
Courts’ responses to subpoenas from business interests have been less consistent; some have ruled that releasing these documents can “damage the peer review process and can also undermine efforts to improve health and safety,” while other courts have ruled in favor of the corporations, alleging that it is in the public’s best interest to resolve these disputes.
Before the BP subpoena, WHOI researchers had already voluntarily released 52,000 pages to BP, which they claim included all the necessary information to replicate and confirm their analyses. The researchers argue that private correspondence, such as e-mails between researchers and the comments of peer reviewers, should remain a confidential part of the deliberative scientific process. In an editorial in The Boston Globe earlier this year, they admit that instances of devil’s advocacy and admissions of “weaknesses in our methods” do appear in the correspondence, but that these should “not cast doubt on the strengths of our conclusions. Rather, it constitutes the typically unvarnished, yet rigorous, deliberative process by which scientists test and refine their conclusions to reduce uncertainty and increase accuracy.”
The scientific method, they argue, ensures that things become more accurate as a study progresses. Especially in a time-sensitive project such as an oil spill, early results are based on approximations and small sample sizes. As information is gathered, more precise data from a larger number of sources refines and improves estimates.
However, correspondence isn’t the only issue at hand here; entire reputations are at stake. With the intention of remaining impartial, the researchers have chosen not to serve as expert witnesses against BP. But in a strange legal twist, this decision actually prevents them from challenging and rebutting any claims that BP makes about the accuracy of their research. Because they are not witnesses, the researchers must be found in contempt of court before they can refute these claims.
The WHOI scientists allege that this lack of legal rights puts them, as well as other scientists, at risk of legal harassment by corporate interests, jeopardizing not only their work but also their scientific and personal reputations. At the very least, they argue, scientists should have the right to defend themselves, to counter-subpoena the corporations, and to seek financial retribution from corporations that have maligned them.