Woods Hole researchers call for legal protection of private e-mails

Woods Hole Oceanographic Institution scientists forced by a court earlier this year to turn over confidential emails to BP about the Deepwater Horizon oil spill are calling for far more legal protections for researchers against special interest assaults.

BP won access to the emails as part of a federal lawsuit against the company for damages resulting from the 2010 Gulf of Mexico disaster. The Woods Hole researchers were involved early on as volunteers to help BP and the government estimate how much oil was flowing from the well. BP has suggested in legal documents the Woods Hole researchers made errors in their calculations and the company needed to see all correspondence to determine why.

Writing in the journal Science, Woods Hole researcher Richard Camilli and colleagues said the type of emails that BP won from the institution in June can be filled with lively debate, dead-ends, skepticism and challenges. He said in an interview the institution was willing to comply with BP’s request for 50,000 pages of documents, computer code, reports and raw data so the company could analyze and confirm Woods Hole findings - but not the private 3,500 emails the company also received that dealt with the “scientific deliberative process”. Those emails included communications with co-authors, colleagues, editors, and journal reviewers.

“If you make that deliberative process so it can be used by one of the litigants, that hampers the process of independent scientific review,” Camilli said. Colleagues at other institutions have told him the Woods Hole experience with BP would make them reluctant to aid in a similar way because their private communications could be taken out of context. “This is the kind of chilling effect on scientific research that is detrimental to society,” Camilli said.

Once, such deliberations were done in person or by phone, but e-mail has provided a written record that companies or other special interest groups are gaining access to through courts or Freedom of Information Act requests. Legal experts say such efforts by private interests appear to be growing, although there are still too few cases to prove it.

The scientists’ estimate matters because the billions of dollars BP will pay is likely to be based in large part on how much oil was spilled during the crisis. The U.S. government has relied on some Woods Hole work that estimated there were 4.9 billion barrels of oil spilled during the crisis. BP has said in legal correspondence the Woods Hole work is “fundamentally flawed” and researchers made “puzzling, apparently arbitrary, suspiciously offsetting” decisions in their work. They are claiming the true release is likely far less.

In a statement released this morning, BP said it “is a company of scientists and engineers, and the subpoena served on Woods Hole is in no way an attack on science.”

The statement said such information is regularly sought in court and in this case “the Court found, among other things, that there was a demonstrated need for the materials because there was no other source for them.”

Woods Hole officials fought the request, but ultimately the court ordered them to produce the emails or risk being found in contempt of court by June 1. After weighing the possibility of being found in contempt of court, paying substantial fines and possibly jeopardizing federal grants for the entire institution, Woods Hole decided reluctantly to release them, said Christopher C. Land a Goodwin Procter attorney representing WHOI.

In the Science piece, Camilli and his colleagues note that the courts have ruled inconsistently on the issue of protecting the scientific process over the years, although it highlights one case last year when a federal court denied Bayer pharmaceuticals demand for confidential comments from outside scientists who peer-reviewed study, saying confidentiality must be upheld and “anything less discourages candid discussion and weakens the process.”

The group said in the policy piece that federal legislation is needed to protect researchers from “legal harassment by interests seeking to silence scientific inquiry or retribution for publishing independent research findings.” At the least, they wrote, scientists need to be granted the same legal standing as litigants so they can defend their reputation and work.

But Woods Hole researchers and officials made clear they do not see it as their primary role to push legislation. While Woods Hole president and director Susan Avery has reached out to Congressional staffers and colleagues to raise awareness of the issue “we can only take things so far, we are not lawyers,’’ Avery said in interview this week. She said organization such as the National Academy of Sciences, the American Association of University Professors and others could start a dialogue on the issue.

Legal analysts say there appear to be more cases of critics trying to discredit scientists by going at the deliberative process where ideas and arguments are not fully formed.
“My sense is that it is increasing,’’ said Rachel Levinson-Waldman, former senior counsel for the American Association of University Professors who is now with the Brennan Center for Justice at New York University. She has especially noticed Freedom of Information requests growing for scientists’ private correspondence, such as those aimed at U.S. climate scientists by interest groups hoping to discredit their work. The demand to look at email communication, she said, “seems designed to embarrass and chill...and driven by an agenda.”

So concerned is The Union of Concerned Scientists, a research and advocacy group, over the issue it has created a new booklet for scientists to respond to criticism and personal attacks. Called “Science in an Age of Scrutiny”, the document gives advice on how scientists should respond to demands for private information or attacks.

“Science publishes its data when it’s ready for prime time,’’ said Michael Halpern, program manager at UCS. If scientists are forced to turn over private emails “it would have a stifling effect.”

Camilli and Chris Reddy, another WHOI scientist whose emails were ordered to be given to BP and who co-wrote the Science article, said they have an ethical responsibility to defend the scientific process.

"I look forward to the day that BP has the good sense to thank the many people who answered the call for assistance in this disaster response and publicly apologizes for it's ridiculous legal actions against independent scientific research," said Camilli.