Today Isis submitted her grant. Then PhysioProf posted this over at the DrugMonkey blog.
ARGGHHHHH!!!!!
You should go over and read it. Seriously. Now.
Apparently one of the Drugmonkey readers has received a letter demanding a copy of an already funded R01 from an anonymous investigator through another university via the Freedom of Information Act.
Here's a snippet to titillate you with....
I am an assistant professor (about 3 years into starting my lab) at a research university. On Monday of this week, I received an email from a freedom of information act specialist saying that a secretary at another research university had requested a copy of my recently funded R01 and that I had 5 days to comply. I called the secretary (who was requesting for an anonymous physician) and explained to her that there was a ton of unpublished data and a research plan for the lab that I thought when writing was confidential. I then offered to send her the grant in its entirety without government involvement if she would have the physician send me an email promising to keep it confidential. I should point out that I am very good about sharing reagents and have given out my grants (funded R01, R21, R03 and foundation grants) to others with the agreement that they stay confidential. Two days after my phone call (and subsequent email), this secretary sent a very curt email saying that they "preferred to go through the freedom of information act [FOIA]."
And a bit of scariness left by the original author in the comments section:
Also, it actually makes you wonder if the lab notebooks filled with data generated with NIH money are also subject to the FOIA.
And a thought from another commenter:
I'm going to side with the FOIA on this one. Just send the grant. The FOIA request is not at all outrageous. Keeping these public documents "pseudo-confidential" by insisting on an FOIA request is just another way the ClubbyBoyz keep the cash in the club. I'd like to see ALL the NIH funded proposals aired out on the internet: probably would help advance the speed of science too.
Go read their post and the discussion happening over there. Those guys really are the kick-ass dukes of federal funding. But, as a recent critic of unbridled Open Access, this does make Dr. Isis wonder -- how much of your publicly funded data should be in the public domain? Does the FOIA require disclosure of any tidbit of data generated with public monies? Would people be alright with their data and grants in the public domain if there were an embargo period?
Who should have access to ones ideas? Other scientists? The lay public? As is pointed out, requesting grants, etc. through the FOIA is a strategy used by "animal rights" extremists. How should MRUs protect their scientists from terrorist groups that might use this as a tactic?
What about the media? Should traditional journalists (and, I suppose bloggers) be allowed access to grants and preliminary data to be able to report on the happenings at MRUs?
I think you know Dr. Isis's response to this, but I would be interested to hear anyone with even a mildly compelling argument that grants should be in the public domain.
And where is Martin Frank of the American Physiological Society when we need him? Off in Japan live-tweeting the IUPS conference or something? Can't we get him to march over to the Capitol and tell those congress critters, "Oh, hellz no!" (cause I imagine that is exactly how he would say it).
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Strangely enough, I was just in this conversation a couple of weeks ago at a grant writing workshop. The dude who ran the workshop (super-hot science, tons of super-sized money, etc.) told us about this FOIA and how it affects the simple relationships between scientists. His opinion (don't shoot the messenger--me) is that, when writing a grant, you should be well aware of what others' have written in their RO1s. It obviously behooves you to know what has already passed by the committee's desk.
But he STRONGLY discouraged using the FOIA because it creates bad blood between researchers. If you would like to know what someone else has written about in a grant, he suggested that you actually contact the author and ask for it. 9 times out of 10, the author is more than happy to send along a brief version. It's much nicer to ask politely than to take it by force.
Now, as for true public access...that's a tough one for me. I don't like the idea of censoring what the people can have access to. But there's also a strong safety component. It makes me think of the idea of the seatbelt law. Yeah, I choose to wear a seatbelt when I drive because I will have a better chance of surviving a serious car accident. Should the government MAKE me wear that seatbelt? My first thought is, "Hell no! Let the people decide for themselves!" I mean, if someone decides not to wear the seatbelt, it's their own damn fault when they become mangled, paralyzed, effed up, etc.. But then I start to think about all the taxpayers' money that becomes involved when that person doesn't have insurance or whatever. I'm all for taxes and welfare...I'm very happy to give my money for such things. But wouldn't it be better if there were fewer dollars spent on "stupidity-based" accidents and more on education, healthcare, prison-reform programs, etc.?
The point of all this is: I say, "Sure! Let the masses have access to our science. Even in its preliminary form. If they misinterpret those data, it's their own damn fault!" But then who pays for that? When the mass media misinterprets, the general public pays. When the animal rights activists misinterpret, the scientists pay (sometimes with their lives).
In my head, it's a conundrum. Do we need some sort of censorship in order to protect ourselves from....ourselves? I don't know. And I don't know where that line could be drawn. Only scientists have access to these grants? What about undergrads? What about politicians who are lobbying for a particular 'pro-science' viewpoint...but not the 'anti-science' viewpoint? It gets really sticky for me.
Posted by: ElectroFizzz | July 27, 2009 12:59 PM
I thought only portions of the application were FOIAble, like the abstract, and then the results become available once they have undergone peer review via open access.
Until the data have undergone peer review, they are not ready for prime time. One could argue that grant review is peer-review, but it's not the same as a manuscript. Until that time, the public does not have a right to the material in my mind.
Posted by: Pascale | July 27, 2009 1:20 PM
Virtually the entire grant is FOIAble and animal rights groups use this very regularly to target researchers (see www.primatelabs.com for example), including posting entire pdfs of grant applications (http://www.all-creatures.org/saen/res-fr.html) complete with personnel identified by name.
Posted by: Anon | July 27, 2009 2:01 PM
This sucks. Obviously policy such as this is being made by CHEESE WEASELS.
Posted by: Pascale | July 27, 2009 2:50 PM
Um "Cheese Weasels?!" Boy, that's a new (to me anyway) derogitory name for federal employees. I'll have to figure out how else this can be used.
Speaking as a federal employee, with a science degree, in an agency that gives out a lot of grant money to academics, I have a bit of a problem with all sides here. I see no reason why one university needs to FOIA another university ot get information on a grant (and FOIA would only apply if its a federal grant since it's a federal statute). I also see no reason why university researchers should not release pertenant facts and data about their work.
What worries me, however, is that grant applications are beling released with Personally Identifiable Information on them, either by universities or by agencies. Our grant folks always tell us that only awarded grant packages can be released (i.e. if you applied but you didn't win I'm supposed to shred your application), but even then we're supposed to scrub PII from the package before it goes out the door.
I'm also worried by the notion that if you are supported by public funds your work shouldn't be publlically available until its published in peer-review, and then that should be the only source. But that's as much a personal preference as anything.
Posted by: Philip H | July 27, 2009 3:27 PM
Okay. I am also shocked by the situation. I've written about my reaction to it, and to your requests for other sorts of information, here:
http://network.nature.com/people/etchevers/blog/2009/07/27/open-access-redacted
(I'm lazy with html sometimes. So sue me. On second thought, don't.)
Posted by: Heather | July 27, 2009 4:03 PM
I'm also worried by the notion that if you are supported by public funds your work shouldn't be publicly available until its published in peer-review, and then that should be the only source. But that's as much a personal preference as anything.
If you are indeed in a gov agency that oversees research funding then you should perhaps think a little harder on this. Should any yahoo have a "right" to everything I've done in the lab at the end of each and every day? Presumably your answer is no unless you are one of those OpenEverythingzz nutters. After this acknowledgment it should be obvious that were we draw the threshold for public or quasi-public release of publicly funded science is tricky to establish.
Remember, as well, that as juniorprof pointed out the creation of the NIH grant application is supposed to be done with non-NIH funds. Thus, it isn't as though anything* contained in there has been obtained with public funds.
_
*I crack myself up. ...but still that is the technically correct situation
Posted by: DrugMonkey | July 27, 2009 4:30 PM
The peer-reviewed paper is the coin of the realm. There is a reason we don't just publish the grant application: the work isn't done! Everything is preliminary, and subsequent work may change it's meaning. Even when we thing we have it nailed down, those pesky manuscript reviewers may suggest an additional experiment that puts a new spin on the work and changes its interpretation.
Is every version of a federally funded manuscript thus subject to public scrutiny? After all, this is a more advanced version of my work than the grant which is FOIAble. Should the public be able to see how peer review changed what is published, because that is now part of the scientific process?
I'm generally in favor of putting stuff out in the light of day, but some of this is ridiculous!
Posted by: Pascale | July 27, 2009 4:42 PM
It sounds like the assist. prof is lawyer-ed up, but here's what my bff, who is an attny, passed along to me:
A few helpful FOIA exemptions:
Record(s) that are a bid or proposal to enter into a contract or agreement prior to the time established for submission or public opening.
Record(s) or information specifically described and exempted from disclosure by statute.
Then, I would look at the statute establishing the funding source to see if some of this doesn't have to be disclosed.
Posted by: gnuma | July 27, 2009 4:58 PM
I am not a lawyer. As far as I know, none of the participants are.
The details of what is (and is not) covered by FOIA is a legal question, and thus the only people who should be offering advice based on that interpretation are lawyers.
That said ...
I don't recall that the FOIA applies to non-governmental entities. In other words, the NIH is required to reply to them but NIH contractors (e.g. their water and power suppliers) are not automatically bound by it thanks to receiving NIH funds.
The people who would know are the contract administration types. You know, the people who get a slice of that "administration and overhead" charge that often eats more of a grant than the actual science?
Posted by: D. C. Sessions | July 27, 2009 5:04 PM
There's no question whatsover that your RO1 is *not* confidential. Portions of it might be, but you're going to have to argue for them under certain limited exceptions (trade secrets leading to commercial outcomes, personal information, and the competitive disadvantage). Redacting those portions will require careful attention to the grant and a discussion with who ever is releasing the information. Furthermore, some states have more permissive open records laws than FOIA, which may in turn require the release of even more information . As someone else points out, many people who do animal research have long been aware of this.
Incidentally, FOIA is what was used to expose much of the abuses under the Bush administration -- it's a *good* law, that's opened up the government's actions to scrutiny. Government grants are government actions. I know we scientists think of our work as our intellectual property, but that ownership claim is limited by the degree to which we're being funded by others (and the myth that data in a grant application isn't funded by the government isn't relevant, the key here is that these grants describe what we plan to do with taxpayer money, once they're funded). Unfunded grants are a different story, but once you've accepted money, one's rights to limit dispersal of one's ideas change.
Posted by: neurolover | July 27, 2009 5:20 PM
UPDATE: The FOIA request has been rescinded.
According to our Dean of Research (after contacting their Dean of Research), "the requesting individual has been counseled on the proper use of the FOIA."
Why wouldn't they just email/call me directly and not involve 10 other people? Strange.
Posted by: writer of the original post on drug monkey | July 27, 2009 5:33 PM
Cool that you got a resolution by going to the requester's boss. But, that doesn't work too well with Animal Rights activists (or members of the general public). But, redaction is still an effective tool. Browsing through the AR site, one can find many examples. Some are minimally redacted (for personal information), keeping much of the content. Others are heavily redacting, removing preliminary data, and plans.
(and, that's something we can all do)
Posted by: neurolover | July 27, 2009 8:58 PM
I may be in Japan, but I still read your blog. How's that for an endorsement. We have had discussions within APS concerning FOIA request with respect to animal research protocols. Pascale brought your comments to the attention of Alice and crew and we will look into what is valid under FOIA. Personally it bothers me that someone is having their secretary make a FOIA request of another university without being willing to have a conversation with the investigator. As the person being FOIA'd noted, he was willing to share but was disturbed by the adversarial nature of the request. Glad the requestor backed off.
Marty
Posted by: Marty | July 28, 2009 1:50 AM
To illustrate what Marty is talking about, see this analysis of what ARA nutters might be inclined to do with info such as that which could be FOIA'd up from grant applications...
http://speakingofresearch.com/2009/07/28/open-letter-to-michael-budkie/
Posted by: DrugMonkey | July 28, 2009 2:21 PM
Like all of these conversations, the huge missing component is the taxpayer's point of view. Do they have a right to know what they are funding or not? It is their money... and I see no reason why they can't be expected to understand the difference between "Here's a writeup of my research - it's been vetted." and "Here's what I'm planning on doing with your money: and this is why I think it will work." The public is not a bunch of three-year olds, and acting like preliminary data is somehow dangerous is the biggest load of paternalistic bullshit I've ever seen. The best rule of thumb in terms of government information is that, unless there's some pressing societal need to keep it secret, it's public information (Hint: you not wanting to get scooped /= a pressing societal need)
And the fact that animal rights terrorists use FOIA is maybe the biggest red herring I have ever seen.
Posted by: Brian | July 28, 2009 11:34 PM
I sent the link for this blog entry over to Martin Frank, but you are confusing the Shelby amendment (which extended FOIA to data generated in federally funded research, in some circumstances) with Free (misnamed Open) Access. The underlying concepts may be the same, but the policies are different and unrelated. Free Access pertains to published literature. I spent a great deal of time analyzing and writing on the Shelby amendment, and I can't see how it applies to the actual grant itself. It applies to the data, and again, only in limited circumstances. Neurolover is just wrong in saying that the grant itself is not confidential. There is a clear judicial interpretation on this issue. The research community itself treats grant applications as highly confidential.
In 1993, the U.S. Circuit Court for the District of Columbia recognized such a distinction in the case of trade secrets and confidential commercial information, which are the basis of a statutory exemption to the disclosure requirements. Although scientific data of the kind collected by biologists may not be considered trade secrets or confidential business information, a court might find the similarities sufficient to sustain a refusal to disclose data submitted voluntarily to the agency. If the information in question is found to fall within the "voluntary" category, such information is considered "confidential" if it is "of a kind that would customarily not be released to the public by the person from whom it was obtained." Critical Mass Energy Project v. NRC, 975 F.2d 871 (D.C. Cir. 1992) (en banc), cert. denied, 113 S.Ct. 1579 (1993). An agency must examine all of the information contained within a voluntary submission and reach a judgment about the submitter's customary treatment of that information. Any given submission might contain information that is not customarily provided to the public by the submitter, as well as information that is customarily made public. Only the former information will be covered by Exemption 4, so voluntary submissions must be segregated carefully to ensure the disclosure of all nonexempt information.
Are you wondering if your grant is even considered to be " (4) trade secrets and commercial or financial information
obtained from a person and privileged or confidential?"
Keep wondering. Congress didn't bother to define those terms. As an aside, next time you hear some senator grilling a judicial nominee about the courts making law, write a letter to that senator telling him that if Congress can write laws without basics like definitions, there is no choice but for the courts to fill in those gaps.
Further, when the Shelby amendment was enacted, there was significant guidance from the White House Office of Management and Budget. It was not as good as scientists hoped and argued for, but it made clear that Shelby didn't make all grant-related information subject to FOIA. The National Academy held a rather comprehensive discussion on the subject:
http://www.nap.edu/catalog.php?record_id=10302
(Access to Research Data in the 21st Century: An Ongoing Dialogue Among Interested Parties Report of a Workshop ).
You might also want to look at this publication from FASEB:
A Legal Look at the Proposed Modifications to Circular A-110
opa.faseb.org/pdf/circular99.pdf
The actual (final) policy is incorporated into OMB Circular A-110 but the OMB notice explaining it is here: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=1999_register&docid=99-26264-filed.pdf
Posted by: Janet | July 31, 2009 7:44 AM
We at PrimateLabs.com are flattered that the vivisection community has noticed our website. We are proud that we expose the horrific suffering underway at primate labs around the U.S. If the public knew the full details of what happened in labs - they would be outraged. That is the reason vivisectors are fearful of FOIA and accountability. We proudly invite the public and the media to peruse our website and find any animal abusers in your neck of the woods and learn about the horrible lives of primates trapped in our nation's laboratories.
Posted by: Jeremy Beckham | August 2, 2009 10:45 PM
There are NO animal studies in the grant under discussion. In fact, funding was cut 10% because there were NO animal studies. Go troll elsewhere Jeremy Beckham.
Posted by: writer of the original post | August 3, 2009 10:43 AM
"There are NO animal studies in the grant under discussion."
I never claimed there were (although clearly your original post brought up the issue of animal activists acquiring information as a concern). I merely responded to defend what our site is doing - exposing the abuse and cruelty underway in our nation's primate laboratories. When our site's name is mentioned only in the context of being "extremist" or "terroristic," it only seems fair that I jump in to present a different perspective.
When our site is under attack anywhere, if I see it, I'll defend it.
"In fact, funding was cut 10% because there were NO animal studies."
This is a very interesting claim. If true, which I assume it is, this means that researchers get more money merely for using animals in their studies. This offers more support for the claim that the primary reason that researchers continue to use animals in their projects is that it increases the flow of money into their pockets and into their institution's coffers. Animals = more money. It also shows that those that approve or reject grants at the NIH are operating with a philosophy that any study that doesn't use animals is inferior to any study that does. This explains why such wasteful and cruel garbage is so frequently funded.
"Go troll elsewhere Jeremy Beckham."
Is dissenting or disagreeing the same thing as "trolling" on Scienceblogs? I've refrained from any form of personal attack, vulgarity, etc.. Besides, PrimateLabs.com was initially called out by name by another commenter, I'm just jumping in the fray to defend our site. Are you just afraid of hearing a different perspective?
P.S. I also find this an interesting comment on this blog by someone clearly speaking from an insider's perspective:
"But, redaction is still an effective tool. Browsing through the AR site, one can find many examples. Some are minimally redacted (for personal information), keeping much of the content. Others are heavily redacting, removing preliminary data, and plans.
(and, that's something we can all do)"
This clearly demonstrates that vivisectors do not redact information out of general concern for security or personal safety - but rather out of concern that the public will not like hearing how their money is being spent to harm animals in horrific ways. What other reason would there be for redacting out research "plans"?
Posted by: Jeremy Beckham | August 5, 2009 10:44 PM
Animal work gets more money because of the cost to maintain the animals in an enriched, clean environment. You guys really need to get some perspective.
Posted by: writer of the original post on drug monkey | August 6, 2009 8:46 AM