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FOIA Suit Over Regnerus Study Continues

One of the interesting stories regarding that terrible Mark Regnerus study on gay parenting is a lawsuit filed by John Becker against the University of Central Florida over their refusal to comply with an open records request for documents on how the study came to be published. Becker has a report on how that case is going at Bilerico.

The study was published in a journal called Social Science Research, which is privately owned by a company called Elsevier but run by a UCF professor using UCF resources. The university has refused to turn over emails between Dr. James Wright, the UCF professor and editor of the journal, and Regnerus along with other documents related to its publishing. They claim all that stuff belongs to Elsevier and are therefore not subject to open records requests.

As I wrote last week, the main goal of both UCF and Elsevier, the company that publishes SSR, is to put distance between the journal and the University of Central Florida. They argue that the journal is a part of Elsevier, and that Elsevier, as a private company, is not subject to the state’s strict open records law.

My attorney, Andrea Flynn Mogensen, pointed out that the evidence to the contrary is overwhelming: the journal’s editorial offices were housed exclusively at UCF and nowhere else; the university granted UCF use of its computers, servers, pass-through networks, email addresses, and office supplies; and the university awarded full assistantships and tuition waivers to grad students to work solely on the journal. Under Florida law, university boards of trustees are only allowed to issue tuition waivers “for purposes that support and enhance the mission of the university.”

Further, Mogensen argued that the evidence shows that in his initial employment negotiations with UCF, Dr. Wright insisted on a reduced teaching load so he could continue with his journal business, because it was critical to the mission of the university. Wright also submitted journal-related travel expenses to the university for reimbursement, and his work on the journal was used to justify tenure, promotions, and awards from UCF.

Elsevier claimed that the records I seek are their property, since they publish the SSR journal. However, Mogensen responded that the records at issue were not produced by Elsevier, but at UCF, by UCF employees — and that at all times, they have remained in the possession of UCF.

Elsevier pointed out that Dr. Wright had signed a confidentiality agreement with Elsevier relating to his job as Social Science Research editor, but Mogensen countered by citing NCAA v. Associated Press, a 2009 case where Florida’s First District Court of Appeals ruled that confidentiality agreements between government employees and private companies do not overrule the state’s sunshine law.

“‘A public record cannot be transformed into a private record merely because an agent of the government has promised that it will be kept private,'” Mogensen said, reading from the decision. “I would add,” she continued, “a public record cannot be transformed into a private record because a private agency expects it to be so… despite [UCF’s] self-serving statements to the contrary, these records are public records.”

It will be interesting to see how this case ends up. I suspect Becker is right, that the details of how this study came to be published and what the peer review was like will reveal some very interesting things.

Comments

  1. eric says

    What do the investigators hope to find – self-serving and nepotistic peer review? I hate to burst people’s bubble, but that probably occurs in a lot of minor scientific journals regardless of whether they are supported by a University or truly private. In fact I would say that the scientific community probably assumed this to be the case the moment they took the time to actually read the study. Maybe lawyers or the press might find the results to be revealing, but I doubt the social science community will find anything novel or interesting in the results.

  2. Trebuchet says

    As part of his witch hunt against Michael Mann, Ken Cuccinelli has demanded similar data from the University of Virginia, which refused. How is that different, other than which side we are on?

    (Happy to be corrected, of course, but the cases sound pretty similar.)

  3. Donnie says

    I assume a major difference is between the State of Florida’s very strict “Sunshine Laws” that I do not know if the State of Virginia has the same strict “Sunshine Laws”. Florida’s laws are much, much more broader than the Federal FOIA laws.

  4. psweet says

    According to an old summary on Skeptical Science, the courts threw Cuccinelli’s demands out because Cuccinelli (acting as Attorney General rather than a private citizen) had no jurisdiction in the case even if he had found what he wanted to. Furthermore, I think those were subpoenas rather then FOIA requests.

  5. Chiroptera says

    On the one hand, we had a clearly partisan political movement trying to intimidate scientists whose near-universally accepted conclusions were a threat to the political movement’s sponsors’ profits by engaging in a realtively wide ranging fishing expedition.

    On the other hand, we have someone who is trying to understand how a clearly flawed research paper got through a journal’s peer review process by requesting documents actually relevent to the process.

    I don’t know how the law is written, but if it truly cannot distinguish between these two situations then there is something seriously wrong with it.

  6. dingojack says

    Trebuchet – “As part of his witch hunt against Michael Mann, Ken Cuccinelli has demanded similar data from the University of Virginia, which refused. How is that different, other than which side we are on?”

    So:
    A) Who is this FOI request’s, oh I’m sorry, witch hunt’s target, precisely?
    B) Who is heading this witch hunt, exactly?
    C) What personal or political gain (against the target) are they hoping to achieve?
    D) How would a FOI request, damn it, witch hunt, achieve this?

    In other words, you’re completely right, except for the minor detail of being utterly wrong.

    I’ll take inanely inapt analogies for $1.50, thanks Alex.

    Dingo

  7. raven says

    As part of his witch hunt against Michael Mann, Ken Cuccinelli has demanded similar data from the University of Virginia, which refused. How is that different, other than which side we are on?

    Not the same. Lack of probable cause.

    1. There was and is no evidence that Michael Mann and 97% of climatologists are wrong.

    2. There is overwhelming evidence that Regnerus was and is wrong. His study has been discredited over and over again, including in a court of law.

    The police can’t search your property just because they don’t like you. They can if they have probable cause that you are committing a crime and have a warrant.

  8. eric says

    @2:

    As part of his witch hunt against Michael Mann, Ken Cuccinelli has demanded similar data from the University of Virginia, which refused. How is that different, other than which side we are on?

    IANAL and you may see this as simply splitting hairs, but Cuccinelli was an attorney general accusing Mann of the legal crime of defrauding the public. He asked for personal emails etc. from Mann as a UVA employee under the aegis of a criminal investigation. AFAIK, Becker is a private citizen, not accusing any one of fraud or criminal behavior, and he’s asking UCF for information about an organization that he claims they run (they claim they don’t run it), not Regenerous the individual. Maybe a good analogy would be the difference between Congress asking DOD for the personal emails between Admiral John Doe and his secretary (illegal), vs. Congress asking DOD to describe the process they used to fire Adm. Doe (legal).

  9. MattP (must mock his crappy brain) says

    @Trebuchet, #2

    The FOIA request to UCF is for correspondence and records related to the publishing process of a single study with many demonstrable issues.

    Cuccinelli was using subpoenas in his role as AG without providing any credible evidence for misuse of funding, or other wrongdoing, on the part of Dr. Mann or UVA. There were separate interest groups filing FOIA requests to UVA, but their requests were extremely broad in scope (wanting all correspondence between Mann and other researchers without a justifiable reason). If they had any evidence of wrongdoing, or simply limited the request to correspondence on a specific topic related to possible wrongdoing, then there might have been some similarity to the request to UCF.

  10. says

    It will be interesting to see how this case ends up. I suspect Becker is right, that the details of how this study came to be published and what the peer review was like will reveal some very interesting things.

    I doubt that it will be any more interesting than the observation that the sun rose this morning. What it will show is that where ideology failed, money changed hands in order to get this study published.

  11. raven says

    I hate to burst people’s bubble, but that probably occurs in a lot of minor scientific journals regardless of whether they are supported by a University or truly private.

    It doesn’t in science. We very definitely depend on peer review to be reliable. In my field, dubious research can, will, and does kill people.

    In a hard science, Regnerus would have been finished. He would have been fired and never gotten another job in science. This happens often to scientists who commit fraud.

    In fact I would say that the scientific community probably assumed this to be the case the moment they took the time to actually read the study.

    They did. That is why they investigated it thoroughly and thoroughly shredded it. That is why they want to know how such an obviously flawed study was published.

    There is a smoking gun here people. In fact there is a giant bonfire with sirens going off and fireworks being launched. We want to know who knew what, and when.

  12. abb3w says

    My impression is that the Mann request was rather more sweeping, involving over ten thousand emails, made to the researcher himself. (Fallout still coming, incidentally.) In this case, the request appears to be associated to correspondence regarding a very particular article’s publication, and of the Journal doing the publishing rather than the researcher.

    There almost certainly seems grounds for a lawsuit to insure that the names of the reviewers remain confidential, at least initially pseudonymous, in the interest of protecting the openness of academic discourse. But otherwise, when you’re talking with a journal, it would seem to be about things you’re trying to go public with.

  13. raven says

    There is an assumption here that scientists just haphazardly make stuff up, guess, and then write sloppy papers that might be true every once in a while.

    It’s not that way at all.

    The scientific methods are designed to eliminate fraud, subjectivity, and mistakes. That is why they work and work well.

    There is a lot of evidence that Regnerus’s study was an ideologically and religiously driven hatchet job on a group he is on public record as hating.

    We need to know that and what happened for a lot of reasons. For one thing, knowing how his flawed study was published keeps stuff like that from happening again. And if Regnerus is discredited, it keeps him and his fellow bigots from doing it again.

  14. eric says

    It doesn’t in science. We very definitely depend on peer review to be reliable. In my field, dubious research can, will, and does kill people.

    AAAS is hosting a session on the problem of irreproducible results in the medical sciences in their policy meeting two weeks from now. The quality of peer review is a real, ongoing scientific issue – and yes, even in fields where dubious results will kill people. I am not anti-science (quite the opposite!), but I will disagree with your claim that self-serving or nepotistic peer review doesn’t happen in science. Of course it does. The question is really how to fix it and prevent it, not whether it goes on. What are the successful models of peer review, and how do we migrate those successful lessons over to the fields and journals that are less successful as scientific gatekeepers of good research? As one example, some journals will ask the submitters for a list of potential reviewers. Good editors will call those reviewers and ask for additional people not cited by the submitter, but in small sub-fields it often becomes impossible to avoid direct compatriots of the submitter. Yet this is not ideal. How can we fix it? Its an interesting methodological question…and not one that will ever get answered if we turn a blind eye to the process and claim (as you did above) that such practices “doesn’t” happen.

  15. a_ray_in_dilbert_space says

    I have to say that while I think the whole sordid story of the Regnerus study is repugnant, I am glad the courts ruled against the FOIA. This is precisely the sort of tactic that climate denialists have brought to bear against legitimate science, at least when they couldn’t steal the emails and publish selective bits of them. It gums up the process of doing science, which has always been understaffed.

    The result of SSR publishing the Regnerus study is that it not only discredits Regnerus, but also the journal. That is as it should be. Scientists are both conservative and busy. They won’t waste their time reading a journal they know publishes bunkum.

  16. wesleyelsberry says

    Florida’s Sunshine Law is broadly worded. When I worked for the State of Florida, everything about my employment was an open record, right down to my salary. Whenever you email something to someone at a state facility, your email address becomes just another piece of public data that the state will refuse to redact on release.

    It appears to me that the decision’s logic in “Analysis of the Public Records Request”, section 3, is faulty. The judge uses as the basis of evaluation of whether the activity occurred on publicly owned property the totality of Elsevier and SSR’s worldwide activities and Dr. Wright’s editorial activities in aggregate. The question of interest, though, is whether the records requested, those pertaining to the Regnerus study, were an activity substantially conducted on publicly owned property, and hopefully Becker’s lawyers will nail this point in the appeal. Becker didn’t request all records of Elsevier or all records of Dr. Wright, thus the analysis should take place at the level of the records that were actually requested.

  17. itinerant says

    Good decision by the courts. The information SHOULDN’T be available under FOI, for the reasons given by the Virginia court of appeals, by Mann et al. The issues are important, but there are other ways to get at them. First, Regnerus’s study, from what I understand, has all the proper caveats in the paper, they are just immediately omitted in the public presentations (of course). It’s an Elsevier journal, so Elsevier are the ones who should investigate, if they don’t want their brand tarnished, and they can always remove the editor and replace him. Pal review or ignorant reviewers are the issues in these cases. Academic independence is important, and FOI was not the way to address it.

  18. Matthew Cline says

    I’m not concerned with the motive of those asking for the information, nor the motive of the university for refusing to give over the information, but rather the justification the university used. Following that logic, wouldn’t the university just have to outsource X if they wanted X to be beyond any FOAI request?

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