A Battle Over California’s Public Records Law

Many people believe that public records laws are fundamental to democracy. But others say they’re being used to stifle public research.

In 2010, two University of California, Santa Cruz researchers found themselves in an unexpected situation. Part of a team studying the impacts of lead poisoning on the endangered California condor, they received a request for emails exchanged between members of their research group over a roughly five-year period. Specifically, the California Rifle and Pistol Association Foundation wanted to see all correspondence that contained the word “lead” in combination with other words like “condor,” “bullet,” and “blood.” The state had previously enacted a partial ban on the use of lead ammunition in condor habitat and at the time, wildlife advocates were pushing for broader prohibitions. The researchers, Donald Smith and Myra Finkelstein, suspected that the pro-gun association was searching for information to discredit their work.

“We do not believe the pursuit of truth and education is fostered by darkness rather than sunshine.”

Smith and Finkelstein spent hours pulling together the records and ultimately, backed by the university, contested the request in court. They are not alone in their experience. Over the past decade, scholars working on everything from climate liability strategy, to the use of biotechnology in animal agriculture, to the safety of abortions performed by nurse practitioners and midwives have been subjected to public records requests made by groups critical of their work. And the number of such requests seems to be rising. According to reporting from The New York Times, the University of California system alone saw the total number of public records requests increase from 3,266 in 2009 to 16,921 in 2017.

In California, the use of public records requests to obtain such information could soon be significantly limited. A bill making its way through the State Assembly would carve out major exemptions from the California Public Records Act for researchers at public post-secondary educational institutions, eliminating their responsibility to turn over correspondence, unpublished data, interview transcripts, and more. The bill, AB-700, states that in order to protect the ability of such faculty to conduct and communicate about their work, “it its necessary to limit the public’s right of access.”

Though AB-700 could offer relief to academics who feel harassed or inconvenienced by mounting requests, it also has major implications for journalists, policy advocates, and industry representatives who stand to lose access to a significant body of public records. “Our nation’s public records laws, federal and state, are a set of crucial good-government laws protecting citizens against a wide variety of ills — corruption, abuse of power — a wide variety of wrongdoing both by government and by corporations,” says Gary Ruskin, co-founder and co-director of U.S. Right to Know, a nonprofit funded in large part by the Organic Consumers Association, with the stated mission of improving transparency within the food system. “These are central to our democracy.”

It’s not clear whether the California bill will muster the support it needs to pass through the Assembly and move on to the Senate. But given the scale of the Golden State’s higher education system, what happens in California is likely have an outsized impact on the national discussion around academic freedom and government transparency.


The California Public Records Act (CPRA) — the state equivalent to the federal Freedom of Information Act — was enacted in 1968 to foster government transparency and accountability, and to explicitly acknowledge that secrecy is incompatible with a democratic government. The public’s right to access public records was folded into California’s state constitution in 2004 in a provision that has been interpreted by the courts to provide broad obligations for disclosure, and narrow exemptions in the interest of privacy.

“A lot of emails involve things like peer review correspondence or internal drafts or other things that were really not right for public view.”

Some academics and scientists say that when it comes to academic research, these exemptions do not go far enough. In a UCLA Law Review article on the subject, “Open Records, Shuttered Labs,” Claudia Polsky points to an increasing number of harassing requests, or those “made with subjective ill intent, such as to distract a recipient from useful tasks by creating records-response busywork, or to dislodge information with the intention of quoting it selectively, acontextually, and tendentiously to inflict unfair reputational damage.”

Subjective intent is, of course, difficult to establish. And ultimately, Polsky, an assistant clinical professor at UC Berkeley School of Law, argues that regardless of intent, the essential functions of a public university — namely, teaching and research — are incompatible with public records requests aimed at its professors. These requests have a chilling effect on research by disrupting and even discouraging certain lines of inquiry, she says. As a result, they threaten academic freedom. Polsky proposes a legislative fix based not on the subjective motives of requesters, but framed around broad exemptions for scholars.

The origins of AB-700, which is not dissimilar from Polsky’s legislative proposal, can be traced in large part to her article, as well as to the advocacy of Michael Halpern, deputy director of the Union of Concerned Scientists’ (UCS) Center for Science and Democracy, who has been an outspoken critic of the use of public records requests to, in his words, “harass” public university researchers. Halpern first became aware of the issue about a decade ago when former University of Virginia climate scientist Michael Mann received a subpoena for his emails from the state attorney general, followed not long after by a public records request from the American Tradition Institute (ATI), a conservative think tank that now goes by the name Energy and Environment Legal Institute. Though Mann prevailed when he challenged the requests in court and the emails ultimately remained private, his experience generated shock waves through the academic and scientific communities.

“You can imagine if you handed out 38,000 of your emails to people who openly disputed the validity of your work, they might be able to find a phrase or two that they could use to make you look bad, so there were some real concerns about doing that,” says Lauren Kurtz, executive director of the Climate Science Legal Defense Fund, referring to Mann’s experience. “Plus, a lot of emails involve things like peer review correspondence or internal drafts or other things that were really not right for public view.”

As Halpern began digging into the issue, he found a large number of public records requests had come since the advent of email. Some of the requests, he says, came from nonprofits as well as companies seeking to “disrupt the work of academics when they didn’t like the result of their research.” Halpern admits this work has put him in an unusual position. The Union of Concerned Scientists, after all, frequently relies on federal and state FOIAs in its own work. Nonetheless, his organization sees certain types of public records requests as at odds with academic freedom.

Records requests pose other challenges, too. The costs to universities seeking to challenge a request in court can be significant, says Dennis Ventry, an expert in tax law at UC Davis. He found himself at the center of a public records battle when a trade coalition for free tax preparation requested access to his emails and other communications. Additionally, Alison Van Eenennaam, a cooperative extension specialist with the Department of Animal Science at UC Davis, worries about recruitment. “Young professors getting into controversial fields will be discouraged from working at public universities because they can be subject to this type of harassment,” she says, noting that researchers at private universities are not subject to the same laws.

Other concerns widely cited by those opposed to broad use of public records laws in the public university setting include the stifling of free discussion; a disincentive for researchers to communicate their work to the public; and the possibility that researchers at private universities will be hesitant to collaborate with public university colleagues.

California isn’t the first state that has considered a legislative “fix” to address public records requests in the university setting. Several states, including Maine and Delaware, largely exclude public universities from public records laws, and just two years ago, North Dakota passed an exemption for state university research information. If California were to join these ranks, however, it would be the state with the most expansive public post-secondary educational system to do so. The UC system alone accounts for roughly 10 percent of the country’s academic research expenditure.


Critics of AB-700 have voiced a range of concerns, many of which converge on the need for robust public records laws to ensure accountability of all publicly-funded institutions, universities included.

“Any effort to weaken any public records laws — federal, state — should be worrisome to citizens across the country.”

In a March 2019 letter to California Assembly member Laura Friedman, who introduced the bill, Kevin Baker, the legislative director for the ACLU of California’s Center for Advocacy and Policy, wrote that AB-700 would severely undermine the California Public Records Act. “We do not believe the pursuit of truth and education is fostered by darkness rather than sunshine,” he argued. If it was, then “the same theory would apply equally to every type of government official that undertakes any inquiry — not only university researchers.”

Jeremy Beckham, a research associate with People for the Ethical Treatment of Animals’ (PETA) Laboratory Investigations Department, notes further that public universities are funded in part with taxpayer dollars. “I think that the public has a rightful interest in expressing how our tax money is used,” he says.

Public records requests often shed light on important information that might otherwise remain outside the public view, says Beckham. With respect to public universities alone, such requests have uncovered Coca-Cola’s campaign to influence public health research at the University of Colorado; brought to light how agrochemical giant Monsanto enlisted researchers at the University of Florida in its effort to promote the safety of GMOs; and uncovered the significant strings that were attached to funding provided by the Charles Koch Foundation to George Mason University.

Information gleaned from records requests initiated by both Beckham’s and Ruskin’s groups has attracted extensive media attention. U.S. Right to Knows’ requests pertaining to biotech groups and GMO researchers have been covered by The New York Times and Mother Jones, among many other outlets, and the documents from their public records request are catalogued at the University of California San Francisco. PETA’s requests for animal-related research information, including photos of animal research subjects, have been covered in the news as well.

The California News Publishers Association (CNPA), too, opposes the bill, at least in its current form, which it describes as too broad. The trade association, which represents more than 500 newspapers in California, has indicated that it might not oppose a narrower version of the bill that addresses some of researchers’ concerns while preserving the robust nature of the California Public Records Act.

“I think what CNPA wants to do is to maybe help Assemblywoman Friedman and the proponents of the legislation craft something that is narrow in its application that specifically addresses the problem, without causing harm inadvertently to the public records act or to the public’s right to obtain information that it would otherwise have a right to obtain,” says Jim Ewert, general counsel for CNPA. “The analogy would be using an X-Acto knife or a surgical instrument instead of a cudgel.”

The CNPA isn’t sure exactly what an X-Acto knife would like in this case or even if there’s a real need for one, especially given there are already certain safeguards built into state law that, for example, protect against disclosure of personal information and trade secrets, or allow for nondisclosure when the public interest is better served.

Along with others opposing AB-700, they are concerned that the additional, broad exemptions included in the bill could become a slippery slope by which the public gradually loses more and more access to information, and through which government becomes less and less transparent.

“Any effort to weaken any public records laws — federal, state — should be worrisome to citizens across the country,” says Ruskin.


Zoe Loftus-Farren is the managing editor of Earth Island Journal. Her work has appeared in Salon, KQED, among other outlets.

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8 comments / Join the Discussion

    I do see both sides of this issue as an information technology professional that supports researchers at our institution. Unfettered university research is important to advance our knowledge of the world around us, making the world a better place to live in and improving life. On the other hand, publicly funded institutions are partially funded by tax payers and transparency is needed so abuse does not occur. On the abuse side of the equation, University of California does have a whistle-blower policy and regular mandatory training on this subject to ensure that faculty and staff adhere to strict guidelines of professional conduct and the use of research funding. There can be bad actors that won’t adhere to this of course and that can’t be avoided 100% of the time, but I think in this Information Age transparency is important with a certain filter and oversight guided by the institution’s policies of accountability. So who watches the watcher? This is a tough question with no easy answer when institutions should be transparent but at the same time be wary in disclosing incomplete data and research that can be taken out of context by persons and organizations with a specific agenda that could skew the narrative and thus burden and/or discourage important research.

    Reply

    In a state that just made it mandatory for police agencies to hand over “use of force” and discipline records, and has an upcoming bill taking effect requiring the disclosure of police video/audio within 60 days – California’s legislators are taking big steps to ensure transparency. Unless of course the transparency calls into question their (legislators) agenda. This particular issue, lead levels in condors, is one where the study influenced legislation. Despite the fact that compliance with the lead ban had no effect on lead levels in condors (in actuality measurable lead levels in condors has increased post ban), and there has been documented cases of condors seen eating paint on old farm houses and barns (presumably containing lead based paint), California proceeded full steam ahead with a state-wide, all manner of hunting, lead ban. Disclosing methodology or observations, communications not published in the study might reveal a narrative that would contradict the messaging put forth by those in one camp on this issue. They can’t have that. Let’s have transparency where it fits the narrative, and not elsewhere. Transparency has its place after all.
    I can’t help but imagine the path this is headed down leading to more university based research driving legislation in support of an argument, shielded by these newly amended laws preventing the same level of transparency expected elsewhere.
    I appreciate the comment above from the researcher who has been the victim of weaponized public records requests. It’s a shame there is no longer the ethical standards once held in the journalism community. These records requests have created an entire niche for people to obtain information and then craft a narrative that has “click bait” value, normally because it hinges on “secrets unearthed” via the records request process. Finding a middle ground to transparency/preventing slanderous journalism (when everyone with a computer can be a blogger) is a monumental task. Unfortunately, this public records disclosure journey probably began without the foresight to recognize these pitfalls, and now efforts like this bill are being made to fix the problem – but the solution needs to be universal, not tailored to one group or another.

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    Transparency is important. However, it has been weaponized (at great public expense) to target scientists teaching inconvenient truths. I’m a public researcher that studies how light changes plant biology, with a focus on indoor urban farming. I also study the genes that influence strawberry flavor to aid the university’s traditional breeding (not GMO) strawberry program. I also have studied biotechnology and host a weekly podcast on the topic. I participate in teaching these concepts effectively through articles, blogs and social media. For years activists have wanted me silent.

    The guy quoted in the article, Gary Ruskin, used FOIA to obtain tens of thousands of my emails. At first I didn’t care– there’s nothing to hide and everything is above board and transparent.

    The problem is that unfettered access to my emails provided Ruskin and others my words to cut/paste/misrepresent in any way they could to maximize damage to my career, my scientific reputation, and eventually stop me from teaching. Ruskin assembled stories based on my words, and distributed them to reporters. In many cases he had to urge them to do the story. Sometimes they did, as in the cited New York Times article by Eric Lipton.

    The article said that I traded secret grants from biotech companies for lobbying, and that biotech companies funded my travel to speak to congressional bodies. It basically said that I my research was not trustworthy and that I was doing the company’s work.

    The fact is that my university received a $25k donation for a communications program I run– from Monsanto. That’s a good thing, as they didn’t control the content and it allowed me to teach aspects of science communication (something we’re not good at)) to scientists all over the country. It was fully disclosed as per university rules and I thanked them (and other sponsors) at each event. They did not sponsor my research, so I never credited them for that.

    But Ruskin, sponsored by the Organic Consumers Association (which is not pro-organic, they are anti-biotech), made up a different story and handed it to reporters like Lipton. I spoke with Lipton and told him exactly what it was, but he went with Ruskin’s story instead and published a hit piece that changed my life forever– upon reading you come away with the feeling that I’m getting top secret grants from companies to lie about science.

    When I teach (well, taught– I don’t have a teaching appointment anymore, probably related to this) students google me because I am a great teacher. They see the article that says that I’m basically a corporate mouthpiece. They also see the tremendous fallout from hateful organizations that slammed me, harassed my family and threatened my laboratory after the article was published. Go ahead, google me– use google images too.

    I sued the New York Times and it was dismissed because the judge felt it was a reporter’s latitude and a first amendment issue. However, in depositions it was revealed that the reporter knew I never lobbied and never received secret grants. The information is false, but exists forever online.

    I lost speaking opportunities around the globe. I still cannot participate in any collaborations that have confidential information or even discussions in closed fora with other scientists online. My colleagues specifically eliminate me from opportunities because of the harassment that begins with public records requests. I suffered horribly from anxiety and depression watching my 30-year public science career disappear.

    The NYT story is just one example. Ruskin gave materials to Alison Vuchnich of Global News Canada who wrote a story about me harassing a teenager– when actually it was quite the opposite. Other reporters contacted me and asked about the emails, I explained, and they didn’t write the stories. Some have integrity.

    And read Ruskin’s US-RTK website about me. It is horrifying. It is absolute slander and I have no way to correct it.

    I’m 3.5 years past this and it has changed my life forever. I keep trying to do more visible acts of good work, I teach when I can, and still participate in the public discussion although at a much different level. So the answer is YES– abuse of public records law to target and harass academics is a problem. We need transparency, but we also need ways to ensure that transparency is not abused to harm others and eliminate them from the classroom and public discourse.

    Reply

    Better,add private universities to be subject public records disclosures. Public funds are spent on private university resarch.

    Reply

    Sounds like it’s sure to pass overwhelmingly in this backwards state. Less questions and less accountability for the government, more laws to burden the people.

    Reply

    Taxpayers have a right to know what is going on inside places like laboratories, where there is no law preventing animals from being burned, shocked, poisoned, isolated, starved, drowned, addicted to drugs, brain-damaged, and abused in other ways. There needs to be some accountability.

    Reply
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