Thursday, March 28, 2013
C.A. Upholds Secrecy of Documents Connected to UC Egg Study
Panel Says Interest in Academic Confidentiality Outweighed Unsupported Ethics Concerns
By KENNETH OFGANG, Staff Writer
A university’s interest in conducting academic research outside public view takes precedence over public concerns about undue influence by outside commercial interests, absent proof that such influence was actually exerted, the Third District Court of Appeal ruled yesterday.
The justices denied a petition by The Humane Society of the United States for a writ of mandate under the California Public Records Act. The society sought to compel disclosure of thousands of pages of documents generated in connection with a UC Davis study of the economic effects of hen-house restrictions.
The panel, with Justice William J. Murray Jr. writing the opinion, upheld a ruling by Yolo Superior Court Judge David W. Reed, who oversaw an in camera inspection of more than 3,000 pages of documents and found all but 28 pages to be exempt from disclosure.
Reed based that ruling on Government Code Sec. 6255(k), the CPRA “catchall” exemption that applies when the interest in secrecy clearly outweighs the interest in disclosure, and on the “official information” privilege laid out in Evidence Code Sec. 1040 and expressly incorporated into the CPRA.
The Humane Society made a CPRA request in July 2008, as it and likeminded groups and individuals were gearing up in support of Proposition 2. The initiative, officially dubbed The Prevention Of Farm Animal Cruelty Act, established standards for phasing out the intensive confinement of egg-laying hens, veal calves, and pregnant pigs on the state’s farms.
Proposition 2 was approved by 63 percent of the voters in November 2008 and becomes operative in 2015.
Opponents of Proposition 2 cited the UC Davis study, Economic Effects of Proposed Restrictions on Egg-laying Hen Housing in California, as proof that most egg producers would no longer operate in the state if the measure passed. This, in turn, would imperil public access to “safe, local, affordable eggs,” they said.
Supporters scoffed at those assertions and set out to prove that the egg and poultry industries had influenced the study and that university resources were being improperly used for political purposes.
The Humane Society’s CPRA request asked for all documents related to the funding, preparation, release, and publication of the study by the UC Davis Agricultural Issues Center, as well as any correspondence with the American Egg Board and correspondence relevant to Proposition 2 and the involvement of university employees or agents in the campaign against it.
The UC eventually produced more than 350 pages of documents, while asserting exemptions with respect to another 3,100 pages or so, leading The Humane Society to bring its CPRA action in Yolo Superior Court.
In response, the university submitted a declaration by Daniel Sumner, who directed the study. Sumner directs the Agricultural Issues Center, and has taught agricultural economics since joining the faculty in 1993. Before that, he was a U.S. assistant secretary of agriculture.
Sumner asserted in his declaration that confidentiality among researchers, and between researchers and outside sources and consultants, is an essential element of academic research, the quality of which would suffer in the absence of an expectation of confidentiality.
“Forcing us to reveal all of our sources, and all of the confidential information they provide us, and releasing every detail of our research communications, in search of bias, will only lead to fewer (if any) sources, and fewer communications, and the work we do, and the benefit we strive to confer on the public, all will suffer. Talking with members of industry and gathering data from industry and other stakeholders is a strong positive—indeed, a necessary—part of doing applied relevant research. It is not evidence of bias that researchers on relevant topics seek data from entities that have useful information. This is a basic princip[le] of social science and indeed all relevant research . . . .”
Reed appointed a special master to conduct the in camera review, with directions to group the documents according to whether they showed “no influence,” “improper influence,” or “influence (but not improper influence)” by industry.
The master concluded that none of the documents showed improper influence, that about 150 pages showed influence that was not improper, and that the remaining documents showed no influence.
The trial judge ruled that in the absence of improper influence, the only documents disclosed should be a handful as to which the university had not made a proper claim of exemption. He did, however, order that names of individuals, other than egg producers, appearing in the withheld documents be disclosed.
Murray, writing for the Court of Appeal, rejected the idea of a broad exemption for academic research. But he agreed that the trial judge had properly balanced the competing interests in the specific case.
“We are not the first court to recognize the chilling effect disclosing prepublication research communications could have on academic research or the negative impact such disclosure would have to the quantity and quality of studies and reports produced for the public by that research,” the justice wrote.
Murray rejected as “semantics” the society’s argument that “any influence is ipso facto improper.” The record, he said, makes clear that “what the trial court did was simply to distinguish between ‘influence’ in its coercive connotation and the noncoercive ‘impact’ that input would naturally have on the results of the study.”
Absent coercive influence, Murray said, any benefit to the public from knowing who had contributed to an academic study would be minimal in comparison to the benefits that would be lost by the refusal of those persons to participate.
The court declined to consider whether disclosure of additional documents would serve the public interest in knowing whether university staff members were improperly assisting the campaign against Proposition 2, saying the society failed to articulate the issue in the trial court.
The case is The Humane Society of the United States v. Superior Court (The Regents of the University of California), C067081.
Copyright 2013, Metropolitan News Company