The Freedom of Information Act and Accountability in University Research

Article excerpt

In general, information on government research grants is covered by FOIA only if it is in possession of a government agency.

Increasingly, citizens and policy-makers look to science to help solve pressing national and international problems relating to such matters as health, environmental quality, and defense. It's no surprise, then, that the federal government is the primary funder of university research in the United States.1 With federal money comes an interest in the policy implications of research, and scientists are regularly asked to contribute to the development of governmental policy.

In recent years, however, several widely publicized cases of fraud have raised questions about accountability in research, especially federally funded research.2 For scientists, promotions and better jobs depend to a great extent on publications in scholarly journals. The pressure to produce high numbers of publications can tempt researchers to fabricate findings.3 Peer review of grant proposals and of manuscripts submitted to scholarly journals is of little help because peer review is designed to assess the quality of a piece of research, not to uncover fraud.4

Fraud is most likely when scrutiny of the research process is least.5 Many scienlists zealously guard their data and lab notebooks6; for the most part, scientists are accountable only to other scientists. However, as Justice Brandeis once said, sunshine is the best of disinfectants. If members of the public (including journalists and scientists) had a greater right of access to information about federally funded research, fraud would be less likely. Increased openness leads to increased accountability.

In addition to inhibiting fraud, a freer flow of information about science and technology might have other benefits. For example, many believe that increased scrutiny by the press and public could help avert incidents such as the accident at the Three-Mile Island nuclear power plant7 and the destruction of the space shuttle Challenger.8

This article examines the extent to which the Freedom of Information Act,9 designed to increase accountability among public institutions, enables access to information about federally funded university research. The topic has clear relevance to journalists who cover science or higher education. But it also relates to the much broader debate about access to government information generally,10 as well as about control of science information.11 Scientists often are unwilling to communicate to the public via the news media.12 And when scientists do talk to reporters, they often attempt to exert tight control over the nature of the communication.13

Although journalists who cover science rarely take an adversarial stance toward their sources,14 journalists and scientists sometimes differ over access to information.15 In such cases, a reporter may turn to the FOIA to try to obtain information that a scientist has been unwilling to provide.

Background

United States citizens have no constitutional right of access to information about government-funded research. Although information-gathering has been linked to the ability to exercise First Amendment rights,16 the Supreme Court "has never intimated a First Amendment guarantee of a right of access to all sources of information within governmental control."17 In the absence of a clear First Amendment right, the court has said that determining what kinds of information must be available to the public is "clearly a legislative task."18 Accordingly, public access to governmental information hinges on what former Supreme Court Justice Potter Stewart once called "the tug and pull of the political forces in American Society."19

In 1966 those political forces produced the FOIA, which created a strong legal presumption that information about federal activity should be available to the public. A series of amendments in 1974 strengthened the act, which has been the principal legal instrument used by citizens seeking access to information about federally funded university research. …