Appellate Court Ruling Confirms There Is No “Researcher’s Privilege” that Automatically Allows Publically Funded Researchers to Withhold Documents from the Public

On Wednesday, the California Court of Appeal, Third Appellate District, (the Court) denied a petition brought by the Humane Society of the United States (HSUS) regarding University of California, Davis’ (UCD) failure to produced documents in response to a public records request.  The documents sought by HSUS are related to a university-funded study published by UCD researchers concerning the substance of California’s controversial Proposition 2, which proposed the prohibition of certain farming practices.   The ballot statement in opposition to Proposition 2 expressly cited and relied upon the conclusion reached in the UCD study.  HSUS did receive some documents from UCD in response to a Public Records Act Request it made in 2008.  When HSUS sued in an attempt force the production of further documents, a few more documents were produced as a result of an in camera review overseen by the trial court.  That court, however, held that UCD was not required to produce four classes of documents sought by HSUS.

The withheld documents fell into four categories:

(1)    raw financial data obtained from farmers,

(2)    drafts of the study, including communications between researchers working on the study,

(3)    prepublication communications between researchers and their board of advisors, and

(4)    communications between researchers and outside consultants.

HSUS filed a petition with the Court in 2011 to challenge the trial court’s ruling.  It is important to note that HSUS’ appeal did not include a challenge as to documents containing raw financial data that were withheld, and thus the Court did not issue a ruling on that issue.

Ultimately, the Court’s evaluation turned on California Government Code section 6255, which provides for case-by-case balancing, and only allows records to be withheld if “the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.”  The Court expressly disregarded the heavily argued position that there is an “academic researcher’s exemption immunizing disclosure of university documents[.]” Similarly, the Court rejected the request that it apply the “deliberative process privilege,” noting that California’s courts do not recognize that privilege as to academic research documents.

In performing the balancing required by section 6255, the Court held the “disclosure of prepublication research communications would fundamentally impair the academic research process to the detriment of the public that benefits from the studies produced by that research” because researchers and those consulted by researchers would be less candid and open in their discussions if such discussions could be made public.  The foregoing was clearly based in large part on the opinion of a UCD researcher the Court treated as an “expert witness.”  The Court found the researcher’s opinion was not speculation, but “competent evidence” “grounded upon his 30 years of experience as a governmental and academic researcher.”

The Court also held, however, that “the objectivity of public university researchers is of vital importance[,]” and that there was a public interest in ensuring the study, being used as authority regarding a ballot initiative, was based on proper methodology and free from improper influence.  The Court found these interests, however, insufficient to justify production of documents sought by HSUS.

Several factors tipped the balance in favor of non-disclosure for the Court.  The Court gave heavy weight to the presumptions that “a published report itself states its methodology and contains facts from which its conclusions can be tested” and that “published academic studies are exposed to extensive peer review and public scrutiny that assure objectivity.”  Thus, the Court concluded, the need for disclosure of documents to evaluate issues of methodology or influence is “diminished” in this instance. Further diminishing the need for disclosure was the fact that the trial court previously oversaw an in camera review of documents being withheld, and it actually ordered the release of some documents previously withheld.  Had all of these factors not been at issue, it seems the Court might not have reached the ruling it did.

There are several takeaways from this ruling.  First, regardless of the Court’s express rejection of a per se researcher’s privilege, it seems clear that the opinion of university researchers vis-à-vis the risks of document disclosure will be given great weight, even if the opinion is not based on any first-hand experience regarding a previous disclosure.  Second, facts matter.  For example, if the Court did not believe the study at issue could have its methodology verified by replication because some data originally collected for the study had been intentionally omitted from the study, that fact might have given HSUS a better shot a obtaining the records it sought.  Third, because the Court expressly recognized that the trial court’s review of the withheld documents helped blunt the concerns related to the documents that were not ultimately disclosed, this should encourage trial courts to exercise their discretion to perform in camera reviews.  Fourth, the ruling does not explain what are, and are not “research communications.”  There is a strong logical argument that, setting aside actual research team members, researchers should not be able to cloak their communications with outside sources by labeling them as “consultants.”  Indeed, if this were the case, isn’t everyone a researcher communicates with in the scope of their employment a “consultant” in one form or another?

At the least, this ruling confirms that if a university researcher wants to withhold documents related to a matter of public interest, he or she will likely be able to.  Thus, in this very narrow context, one could argue the burden of section 6255 is flipped.  That is, when research-related records held by a university researcher are sought, it is the duty of the one seeking records to show that the public interest served by disclosure of the records clearly outweighs the public interest served by not disclosing them.  Thus, it is foreseeable that publically funded research facilities will use this ruling as a shield to hide the very data that is required for scientific verification and evaluation of possible improper influence, notwithstanding the fact that the ruling expressly states it does not “create an academic researcher’s exemption immunizing disclosure of university documents[.]”

Litigation regarding California’s Public Records Act is difficult, especially for those seeking records from a university researcher.  If you have made a request for public records under California’s Public Records Act and records have been withheld from you, Michel & Associates, P.C. may be able to assist you.

Humane Society of the United States v. Super. Ct. (Regents), case no. c067081.

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