RECENT COURT RULING MAY MAKE IT MORE DIFFICULT TO OBTAIN INFORMATION FROM RESEARCHERS WORKING TO BAN HUNTING WITH LEAD-BASED AMMUNITION

ON APRIL 16, 2013. POSTED IN LATEST NEWS, LEAD AMMUNITION BAN PROPONENTS, LEGAL NEWS

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 produce documents in response to a public records request.  The case, HSUS v. Regents, addresses an issue that is extremely important in the current public debate about lead ammunition. The case is important because it addresses the ability of researchers at publicly funded universities to withhold information related to their own research, even when the results of that research are at the heart of a hotly contested issue.  Unfortunately, the case seems to protect the supposed interests of public university researchers at the costs of the public’s right to access important information.

In HSUS v. Regents, the Court allowed UCD to keep certain requested documents secret because it found “the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.”  Thus, though the Court expressly disregarded UCD’s heavily argued position that there is an “academic researcher’s exemption immunizing disclosure of university documents[,]” it nonetheless ruled that, based on the balancing test applied by the Court, UCD could keep certain research-related documents secret from the public.  The documents have to do with a scientific study UCD researches created that was related to a California ballot initiative intended to modify California law to prevent farmers from using certain animal confinement practices.  The study was prominently cited during the public debate on that controversial issue.

In its ruling, the Court noted that, “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.  Accordingly, the Court’s view was that the foregoing “clearly outweighed” the public’s interest in evaluating “the objectivity of public university[.]”   Thus, it seems that, when research-related records held by a university researcher are sought and the university refuses to produce them, it becomes 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.  This standard is contrary to the regular rule that applies to requests for public records: it is normally the government’s job to persuasively explain why it should be allowed to keep certain records secret.

It is foreseeable that publicly 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 over legislatures and agencies.  Nonetheless, the ruling expressly states it does not “create an academic researcher’s exemption immunizing disclosure of university documents[.]”  Indeed, prior to the issuance of this ruling, the California Rifle & Pistol Association (CRPA) sought records from the University of California, Santa Cruz (UCSC), regarding publications UCSC researchers had created that identified spent lead ammunition as causing lead poisoning in California condors.  UCSC refused to provide certain key documents and data, and CRPA was forced to file a petition in the Superior Court of Santa Cruz.  Though the Court agreed that some of documents requested were subject to production, it basically refused to recognize the value of the information sought, giving little weight to CRPA’s interests in verifying the researchers’ conclusions, and heavy weight to the researchers’ interests in keeping information and data secret.  In that regard, the ruling on CRPA’s petition was similar to the ruling in HSUS v. Regents.

It is worth noting that, as a result of CRPA’s lawsuit, UCSC did eventually admit that some data was withheld from a publication.  That publication is consistently cited to support the anti-lead ammunition agenda.  Public record lawsuits may provide some valuable information to the public when the documents sought have to do with the relatively secret research process occurring at public universities. Unfortunately, HSUS v. Regents provides, for the first time, a published ruling of a California appellate court that strongly supports secrecy regarding documents created by those working in the research facilities of our publicly funded institutions.

This is especially problematic because those relying on studies like the one at issue in CRPA’s case, a group that seems to include certain members of the California Fish & Game Commission and even members of the state legislature, seem to treat “peer reviewed” university research as the “gold standard” for implementing public policies and regulations.  By doing so, members of the public are effectively being told that they cannot challenge the merit of a university publication and the “peer review” process unless they take on the burden to fund independent scientific research and publications to rebut the fallacies of the publicly funded publications.

This outcome is not only implausible and unreasonable, but somewhat disturbing as well, seeing as the mission of public universities is, at least in California, to perform research on behalf of the public.  (Educ. Code § 66010.4(c) [“The University of California shall be the primary state-supported academic agency for research.”].)  And in any event, the average person can’t collect samples from California condors; unless one has a difficult to obtain “take” permit, it is a criminal violation of the Endangered Species Act (ESA) to collect California condor blood, tissue, bone, or even feathers.

Access to data is crucial to HuntForTruth.org.  To combat the misguided efforts by environmental activists and researchers seeking to infringe on hunting and shooting sports regulations, Hunt for Truth has collected tens of thousands of documents via public records act requests over the last several years pertaining to the use of lead ammunition.  Many of these documents raise serious doubts about the veracity of claims that lead ammunition is poisoning California condors, wildlife, or humans.  Hunt for Truth has used these documents to debunk the faulty science being used to implement various lead ammunition bans across the country. These efforts are critical in defending the status quo for hunters and recreational shooters nationwide and have resulted in the rejection of several proposed and ill-conceived lead ammunition bans throughout the United States.