CALIFORNIA RIFLE AND PISTOL ASSOCIATION FOUNDATION V. U.C. REGENTS

ON MARCH 21, 2012. POSTED IN LATEST NEWS, LEGAL NEWS

California Rifle and Pistol Association Foundation (CRPAF) filed suit against University of California Regents in order to obtain the original data for the Church Study, so its own scientists could independently evaluate the data and determine the validity of claims that there is a causal link between hunters’ use of lead ammunition and health problems in California condors. However, Judge Jeff Almquist denied CRPAF’s request that the Court order U.C. Santa Cruz to provide public access to the original data collected by U.C. Santa Cruz researchers in these studies.

The original data used in the Santa Cruz studies (i.e. Church Study) must be independently evaluated to determine the legitimacy of the claims being made in the study. To obtain it, NRA/CRPAF sent multiple public records requests to the University of California system, also seeking the original data used to support the conclusions reached in University of California, Davis (“U.C. Davis”) lead ammunition studies. The requests seeking public records related to these taxpayer-funded research projects were obstructed by various governmental agencies and the universities.

Despite the fact that taxpayers paid for these studies, both U.C. Santa Cruz and U.C. Davis initially refused to produce information and original data, claiming they were exempt from production under the California Public Records Act under an alleged “researcher’s privilege.” Both universities claim that information relating to scientific research is privileged until that study is published in a peer-reviewed journal. The Public Records Act, however, contains no exception for a “researcher’s privilege,” and such unpublished studies are often used by researchers to lobby and to influence government agencies like the California Fish and Game Commission (“Commission”) in the public policy debate about the regulation of lead ammunition.

Apart from the claimed “researcher’s privilege,” U.C. Santa Cruz has also made excuses to delay turning over the data and information, including claiming it will take approximately two years to provide responsive documents relating to published studies to which the alleged “researcher’s privilege” exemption admittedly does not apply (i.e., published studies). U.C. Santa Cruz’s actions forced the CRPAF to initiate litigation to obtain the requested information.

Judge Almquist nevertheless upheld the U.C. Santa Cruz “researcher’s privilege” defense, and further ruled that the public interest in disclosure of any unpublished data (i.e. “cherry picked” data), was outweighed by the “researcher’s privilege” and not disclosing the data. In other words, the Judge ruled that it was more important to maintain the researcher’s reputation (i.e. not being subject to critique or criticism outside the perverted peer review process), than to allow public access to the data, even though the CRPAF sought to verify the findings and conclusions in scientific publications that were paid for by the taxpayers and are being used to influence regulatory policy and rulemaking.

Judge Almquist’s Order specifically states “[t]he public is not entitled to data that are excluded from [published] studies as that would interfere with the deliberate process of researchers deciding what data to include and what to exclude because [in the researcher’s opinion] it is anomalous or irrelevant.”

Judge Almquist’s ruling highlights the numerous obstacles frustrating the Hunt for Truth’s pursuit of underlying data behind the taxpayer funded “research” that is being used to advocate proposed lead ammunition bans in California and in other states, and it demonstrates the lengths to which researchers will go to prevent the release and scrutiny of the data.

For several years now, Hunt for Truth attorneys and scientists have been seeking the researchers’ original data underlying the claims being made in various studies that purportedly justify further bans on the use of lead ammunition in California. Significantly, analyses of the information and data obtained so far has revealed big problems with the researchers conclusions in some of the studies, including “cherry picking” data, flawed methodology, and improper sampling protocols. This most recent lawsuit is based on a public records act request made by CRPAF/NRA on December 1, 2010. That request was brought, in part, in an attempt to determine why the Church Study published in 2006 by several U.C. Santa Cruz researchers (among others) appears to omit consideration of certain “original data” collected for that publication. From information that has been obtained, the CRPAF/ NRA probe has revealed that the authors of the Church Study had not incorporated all the relevant “original” data into their findings and had omitted underlying data that did not support their conclusions (i.e. “cherry picking”).

When NRA/CRPAF revealed these omissions to the Commission in August 2009, while opposing environmentalists’ proposal to expand the current condor zone lead ammunition ban to include .22 rimfire ammunition for hunting rabbits and shot for hunting migratory upland game, the Commission rejected the proposed expansion of the lead ban. At the time, the Church Study was the “Holy Grail” of scientific studies being proffered to support the banning of lead ammunition. Upon learning that data had been selectively excluded from the studies’ conclusions, several Commissioners criticized the scientific validity of the Church Study findings. One Commissioner even called it “pseudo-science.”

The NRA and CRPAF have recently made presentations to the Commission highlighting just some of the difficulties encountered while seeking to obtain these vital public records. Obstacles to NRA/CRPAF efforts include claims that data has been destroyed and/or withheld on dubious legal grounds.

With respect to the Santa Cruz studies, documents that CRPAF has obtained from the California Department of Fish and Game indicate that Federal brand ammunition samples were taken as part of the research leading up to the publication of Ammunition is the Principal Source of Lead Accumulated by California Condors Re-introduced to the Wild. That publication, however, does not discuss Federal brand ammunition samples. In follow up to Judge Almquist’s Order, CRPAF/NRA learned that Dr. Donald Smith had in fact examined Federal brand ammunition and omitted in their final publication. This is a major victory and will serve as the basis for completely debunking the Church Study once and for all.