Letter From A Reader: FOIA Requests For Funded R01s

Jul 25 2009 Published by under Conduct of Science, Ethics, NIH

Today DoucheMonkey and Comrade PhysioProf received the following letter from a reader:

Drug Monkey and Physioprof:
I follow your blog quite a bit. I am writing with the hopes that you can publicize something that has happened to me and others that I find ethically egregious and could happen to other NIH-funded scientists. I will give you the short story, but if you want all the sordid details, I can share them with you.
I am an assistant professor (about 3 years into starting my lab) at a research university. On Monday of this week, I received an email from a freedom of information act specialist saying that a secretary at another research university had requested a copy of my recently funded R01 and that I had 5 days to comply. I called the secretary (who was requesting for an anonymous physician) and explained to her that there was a ton of unpublished data and a research plan for the lab that I thought when writing was confidential. I then offered to send her the grant in its entirety without government involvement if she would have the physician send me an email promising to keep it confidential. I should point out that I am very good about sharing reagents and have given out my grants (funded R01, R21, R03 and foundation grants) to others with the agreement that they stay confidential. Two days after my phone call (and subsequent email), this secretary sent a very curt email saying that they "preferred to go through the freedom of information act."
At this point, I got nervous. I called the FOIA specialist and found out that I could redact portions of my grant but my PO would have to approve the redactions. I found out that this mechanism for obtaining grants is typically used by animal rights activists and labor unions (trying to unionize technicians), but is incredibly rare for competitors to try to do this. In asking, none of the senior faculty in my department or at the research institution where I did my post-doc had ever had this happen to them. I also found out from the FOIA specialist that 2 other grants from other investigators had been requested. One awarded to an investigator at another research university had come while he was out of town, and the NIH sent it out in its entirety. In his email correspondence to me, this investigator was very upset and was receiving little support from his school. He wrote that the only thing he knew to do was to spend the summer writing half-finished papers.
After receiving his email, I contacted my Dean. He has been incredibly supportive and the school has found a pitbull of a lawyer for me in their general counsel's office. We are fighting this vigorously, and beyond the Dean, higher level officials at the school are also involved.
While this request may be technically legal, it is certainly unethical and terribly noncollegial. I still don't know who the anonymous physician is. Imagine being forced to share your unpublished data and research plan with an anonymous colleague when you wrote the grant with the understanding it would stay confidential!
I would very much like you guys to highlight this situation on your blog to let others know (a) this can be done and (b) this can be fought.

70 responses so far

  • juniorprof says:

    Just thinking out loud here... If the preliminary data was obtained from a non-federal source, like startup funds, wouldn't you have a right to redact it because it is either personal or institution-based intellectual property? Isn't all preliminary data "supposed" to be obtained in such a fashion anyway?

  • Anonymous says:

    I'll look forward to hearing how this turns out -- but in general, funded grant applications must be disclosed upon request. The reason for the request doesn't matter (whether by animal rights activists, or research competitors). Anonymity seems odd, but I'm not sure exactly how one circumvents the possibility that one person can request the information and then show it to others. Frankly, in many cases, if the information is deemed a "public record" the receiving person is free to post it to the internet.
    There's the trade secrets exemption:
    "Trade secrets. A trade secret is a secret, commercially valuable plan, formula, process, or device that is used for the making, preparing, compounding, or processing of trade commodities and that can be said to be the end product of either innovation or substantial effort. There must be a direct relationship between the trade secret and the productive process."
    That might allow some information to be kept confidential, but I'm guessing it would have to be a narrow rather than broad limitation (especially under the Obama administration, which generally supports open access to government documents). I can understand why someone would consider a funded RO1 proposal to be private and confidential, but as something the government is committed to spending millions of dollars on, it's easy to see the other side of the question. And, if it's not private or confidential, we can't differentiate among possible recipients.

  • Anonymous says:

    (PS: Not a lawyer, though relatively familiar with FOIA requests -- so looking forward to how a legal fight turns out)

  • D says:

    It is interesting that they went directly to you. They could have also sent this request (and possibly did) to NIH directly. Is that what you meant by a FOIA specialist?
    Since you have a good lawyer I suggest that you do all that you can to redact your grant and find out who is really asking for this information. Let them threaten to take you to court. Then your lawyer can do a little "discovery" too.
    The threat of a little sunshine might scare the roaches away.
    I found these two points on the NIH site (http://grants.nih.gov/grants/policy/nihgps/part_ii_2.htm) that suggest a way of preventing FOIA release of some of your data.
    # Information which, if released, would adversely affect the competitive position of the person or organization; and
    # Patent or other valuable commercial rights of the person or organization.
    That is, suggest that you are going to patent a lot of the info so it can be redacted. Seems like a good loophole.
    Good luck. Keep us informed.

  • D says:

    PS. If the fight is going against you you can always post the name of the Institution and secretary who is requesting the info. I bet it wouldn't be hard to deduce the physician's name.
    And I the general uproar would force the school to put pressure on the faculty member to withdraw the request. Perhaps you school's Dean and higher are already doing this?

  • daedalus2u says:

    You should make it clear that any unattributed use of any of the material is scientific misconduct.

  • niewiap says:

    That's some pretty scary crap. This needs to be widely publicized and must cause enough uproar among scientists to elicit some reaction from the lawmakers. One solution would be for anyone requesting a grant app based on FOIA to sign a statement that they will keep the information confidential and that they will not use the data and ideas contained in the app to gain unfair advantage over the author. A breach of the terms of this statement should be considered scientific misconduct and investigated by ORI.
    There must be a compromise between the transparency of public instututions and the integrity of scientific pursuit. If grant applications cannot be kept confidential, the whole system breaks down.

  • Lab Lemming says:

    I don't really think that naming the secretary is particularly useful. She is unlikely to have much say in what the FOI procedure in her department is.
    But by all means put the name of the institution and department up, and we can all FOI all of their researchers in a game of tit-for-cybertat.

  • writer of the original post says:

    I am the person who sent this in to this blog. Thanks for all your comments and suggestions. With the help of my lawyer, we are essentially trying to redact all the unpublished preliminary data and the experimental design. One of the issues is that the grant has an unpublished phosphorylation site (with the antibody generated) and a novel binding parter of a disease-associated protein. This is the project of 2 of my grad students and I could try to pound it out myself without the complete story, but then that ruins their learning. At the same time, I don't want them to get screwed.
    Juniorprof (Comment 1): Preliminary data was generated using a K08, foundation money and startup. It gets tricky when trying to figure out what came from what. Plus, apparently once the grant gets funded it is in the public domain.
    Anonymous (Comments 2 and 3) - We are using the "Trade Secrets" exemption. NIH seems to be pretty sympathetic to our side.
    D (Comment 4): Out of the blue, I was contacted directly by the FOIA specialist at the government - sorry if that wasn't clear. We are being really aggressive on the redaction but need to get it by the FOIA specialist and the Program Officer. The PO is good, but is in a tough position. I don't really want any drawn out legal battle, but it might end up that way.
    D (Comment 5): I sooooo want to post names, but if this goes to a legal battle, I don't think I should. Once its over, I'll post the names. The secretary is merely a conduit - I think she's just doing what she's told and from talking with her, I don't think she understands how outrageous the request is. She is also from an area with high unemployment, so I suspect she needs to keep her job. She also covers four clinical departments and although I've been searching, I can't say for certain who is requesting. For this reason, I don't want to be wrong and falsely accuse someone. Lastly, I've heard that our school (Dean and Provost) are sending a letter to the other Dean. I suspect this might go away that way.
    dadaleus2u (Comment 6): My chair has suggested requesting grants from this person at every subsequent grant cycle and having the NIH screen for similarities. Who wants to get into a scientific misconduct battle, though - It never seems like the whistleblowers do well in the end.
    newuiap (Comment 7): Please publicize at your school. I think the more people who know about this the better. I wish I could give more info, but am worried about future legal stuff.
    Lab lemming (Comment 8): I'll post the school's name when its over. I thought at first that these people were just poorly socialized and didn't know how to ask politely for a grant. After speaking with the other, more senior PI who also had his requested, I knew there's something nefarious going on. I'm hopeful that alerting their dean will cause some sort of punishment so that it doesn't happen again.
    One last thing to put salt in the wound...In her original request, the secretary asked for a fee waiver in obtaining the documents. Can you imagine this doc who's probably well into 6-figure income requesting that the taxpayer footing the bill for this? Right now, at least 6 people have had to work on this (myself, my Dean, the Dean of Research, my lawyer, the FOIA specialist, the PO).
    Anyway, thanks all for your comments and suggestions. Please publicize this as you can. I'm not very political, but this really has me fired up.

  • lost academic says:

    I think trade secret redactions are going to get you most of the way down the road you need to travel. While this is a separate issue in some regards, I routinely work with companies who are filing applications with a heavy degree of process and chemical detail required to clearly define and substantiate air emissions for which they are requesting certain limits in permits. They attempt to redact everything under the sun, and depending on the state and federal requirements and permit type, they can get away with a lot of it. They don't in almost any case need to define product formulations or identifying quantities in processes. I hope your institution takes over much of this fight for you - it is egregiously unethical at best to attempt to underhandedly acquire someone's unpublished data. Someone is going fishing and I bet you are not the only one. Remember, too, that a FOIA request has its risks to the requester - you have to provide a lot of identifying information to make them, and that includes your name. There is no reason you should not be able to find that person's name and there is no legal reason you shouldn't publish it someplace if you feel there is a need to do so. (Sadly, it's why our client will sometimes have us do the FOIA, then no one knows it was information they wanted.)
    Good luck!

  • writer of the original post says:

    Also, it actually makes you wonder if the lab notebooks filled with data generated with NIH money are also subject to the FOIA.

  • whimple says:

    I'm going to side with the FOIA on this one. Just send the grant. The FOIA request is not at all outrageous. Keeping these public documents "pseudo-confidential" by insisting on an FOIA request is just another way the ClubbyBoyz keep the cash in the club. I'd like to see ALL the NIH funded proposals aired out on the internet: probably would help advance the speed of science too.

  • S. Rivlin says:

    I tend to agree with whimple. The suspicion of possible future misconduct is surely not an excuse to refuse sharing information. Whoever is the physician asking for a copy of the grant is already appearing here as a shadowy character who's up to no good. That could very well be true, but since no one knows who s/he is and what are the reasons for the request, any attempt to paint him/her in such a light is wrong.

  • Shitlin, where you been? I was worried about you.

  • becca says:

    I'm pretty sure there's a category of NSF grant that something like this applies to, but only after-the-funding-period. I think they are all online. That strikes me as a much more reasonable way to balance the public interest in taxpayer funded research being available and not totally screwing researchers in competitive fields.
    Of course, it's very depressing to discover as a graduate student that somebody has already been funded to do most of what you've proposed, and that it didn't even work out well enough to be published. It's like getting scooped without even the cold comfort of knowing someone else out there cares about the topic you were working on.

  • Doug Natelson from Nanoscale Views got one of these: http://nanoscale.blogspot.com/2007/05/foia.html
    I've had people I work with come up and ask me if we can FOIA for unpublished results (maybe unpublished because negative) from gov't science labs (ew!). Even if you *could* get stuff that way, so totally not the way to go - which I tried to explain.

  • KT says:

    All you have to do is look at the 2nd tweet to see the problems with the 1 in 10000 unethical scientists.

  • Anonymous says:

    Seems like you'll have a few lines of argument for redaction, and it is notably hard to appeal redaction (as long as you can convince your PO to do it the way you want).
    In general, though, taxpayers have a right to know what taxpayer money is being spent on. And, I can see how individual scientists would feel violated, but am a little confused about why science and the public itself wouldn't benefit from grants being made public. Yeah, someone might get scooped, but doesn't that mean we get the answers faster?

  • Curt Fischer says:

    I'd love to live in a world where everyone thought the way whimple did. It would be good for the speed of science if grant applications were published the instant they were funded. But until that time, as long as we are living in today's world, I have to agree that the FOIA request strikes me as very un-collegial. If I were in writer of the original post's shoes, I'd probably react much the same way he as reacted. I don't see anything wrong with what he is doing and is planning to do.
    I know that sometimes, PIs are able to quite rapidly recast grant applications into review articles and/or pseudo-review-cum-pseudo-research-articles. Maybe if FOIAing increases, PIs will try to publish more of the grant applications in this way ASAP after submission.

  • Mike_F says:

    To whoever is "a little confused about why science and the public itself wouldn't benefit from grants being made public" if this kind of request becomes routine, 'twill be an excellent way of ensuring that grants become less and less innovative. If your best unpublished ideas are going to be divulged to your most unscrupulous competitors before you have a chance to publish, they will not appear in the grant, period. And you will get the answers MUCH MUCH slower, not faster... .

  • (Wrote this yesterday morning but I guess the Sb comment poster thingie was borked)
    A similar FOIA request came in a couple of years ago to two K-awarded physicians I know. The requestor was someone at an alternative medicine institution - i.e., they were told who it was by that PO to be sure it wasn't a person associated with some terrorist group. I assumed it was someone not experienced in how academic science works (i.e., if you need help with a technique, call me or e-mail me).
    The physician-scientists also had the support of their institution but did respond with a very extensively redacted version of their grant (again, a supportive PO).
    My feeling is that the law as written presently does require that one respond; however, I also feel that you should be informed of the identity of the requestor (not the secretary but rather the investigator hiding behind the secretary - you may be able to guess who it is based on a search of their department, right?). In that way, you could know what parts should be redacted.

  • Denis Alexander says:

    Just redact out all the information/data that you think is proprietary. Take out all the preliminary findings section if you want.

  • Mu says:

    I'm rather surprised that you can FOIA grant applications in the medical field. I know that the grant application in my funding mechanism (mostly SBIR) is strictly separated into a "to be published, does not contain proprietary information" section (aka summaries) and confidential technical information. Ditto for all reports written under those grants, especially all unpublished results (which you can't publish in many cases without [funding agency] approval.

  • Holy balls!!!! I think I just hyperventilated a little.
    Also, Ping, boys!

  • I'm so mad just reading this story! Can you just slip in some falsified reagents to throw them off track? But I guess that battling dishonesty with dishonesty is maybe a bad track.

  • Curt Fischer says:

    Mike_F, In a world where grant applications are routinely made public -- i.e., published -- by the governmental agencies who fund the grants, why would there be a need for separate publications? Don't you think that grant applications/publications would become an accepted venue for publication?
    I don't know why you think public grant applications would force people to dumb down their grant application and become less innovative. Does writing papers in for-profit journals force investigators to dumb down their results and hide important data from readers? Usually, IME, the opposite is more likely to happen.

  • It certainly might make people in fields where scooping is more of a problem only use already published "pilot" data. I could see how this would hurt the early career investigator.

  • DrugMonkey says:

    Personally, I think the scientific snooping aspect of this sort of business is about the least bad of all the ones that I've heard about.It's an application for public funding...I have minimal patience for secretiveness, particularly when it is limited to the publication priority/scooping BS that I thoroughly oppose encouraging.
    The baddies, in my view, are the ones that are motivated as personal attacks on the scientist in one way or another. The ARA nutters, sure. but also anything which is designed primarily to waste someone's time fighting the FOIA (yeah, I'm cynical that way). Revenge attacks for perceived harms in the course of reviews of papers/grants, etc
    Decent, but fraught with landmines, are those ones where fraud or intellectual thievery or suchlike is suspected. We want fraud to be investigated, and accusations should have proof. A showing in the light of day, etc. Trouble is that this could easily be misused.
    The recent Congressional grandstanding on projects which "clearly do not deserve public funding" are one example. Can you imagine if one of these politicians' staffs tried to actually go through the project point by point? "Why is this graph N=2 here? Isn't that far below the scientific standard, hey, what's this dude trying to pull??"
    For your further entertainment and edification, I submit l'affaire Ricaurte. His critics FOIA'd his progress report after that little 2002 Science paper cockup. Would it have been a good thing if things were routinely open, FOIA requests were responded to immediately? ( The original paper appeared fall of 02, this progress report would have been due 5/03 and the retraction didn't appear until 9/03. ) Is it good in retrospect that we have this additional information? or is it just opening up the piling-on without additional light shed on the situation?

  • whimple says:

    Not wasting your time fighting the perfectly legitimate FOIA demand (it's not a request) is another good reason to just get it over with and immediately send the grant. Some day, hopefully, the public will wake up to the fact that the business of the NIH is the production of grant applications. Sometimes grant production correlates with science the public is happy to have paid for, and sometimes not. The science is already forced to be in the easily accessible public domain (PubMed). It seems a very small step to force the grants to be likewise deposited. I say, "bring it on!"

  • DrugMonkey says:

    ...particularly as new 12 pg apps will be much reduced in content whimple?

  • Claire says:

    OLAW has a good webinar on FOIA. Obviously, it's meant to focus on the animal extremist angle, but it is also a solid general primer, presented by the NIH FOIA Officer: http://www.grants.nih.gov/grants/olaw/educational_resources.htm
    A couple of points:
    1) You can FOIA FOIA requests, so getting the anonymous physician's name isn't even a matter of making an educated guess. Also, you can set up standing FOIA requests, so anyone concerned about NIH fulfilling a FOIA request of their grant without their knowledge can set up a standing FOIA on all FOIAs of their work. You could even set up a standing FOIA of all PETA FOIAs, if you're curious and have a lot of free time.
    2) One FOIA policy is that information for one is information for all. They are not allowed to consider the motives of the person making the request when deciding to fulfill it. If they're going to make it available to the nice-guy-with-no-ulterior-motive they must also make it available to the unscrupulous scientist or ALF fanatic. So no matter what this particular person's motive, it's important to fight it if you have a solid case for withholding this info from bad players. (Besides, there’s nothing stopping nice-guy from posting the whole shebang on the intertubes.)

  • Curt Fischer says:

    Janus Professor: "Battling dishonesty [sic] with dishonesty is maybe a bad track."
    Ya think?!?!?! Fraud is not really a viable option. I can't believe you suggested it.
    Also, do you have some kind of evidence that the FOIA request involved any dishonesty? If so, what is it?

  • frog says:

    I'm curious about the institutional politics of such a situation. If we assume this is an attempt to "steal a scoop" -- it's an attack on the funding of the university.
    In such a situation, there's not just legal questions, but political questions. This would seem to be a case where it would be appropriate to escalate to much higher levels, to leverage political influence: aka, "If you do this to our researchers, we plan on making this SOP for our researchers against you".
    The response to breaking "gentleman's agreements" is to make it clear that there are repercussions -- far reaching consequence beyond this tit-for-tat. If all's fair in love and war -- then all's fair.
    And to those who say -- just give in, secrecy is baddd. Well, sure, after you've had time to succeed or fail in your project, sharing should be required. But before? You should (particularly for folks starting their careers who can't hire on folks for a race) have a bit of time to actually work out your ideas. It's bad enough that faculty take credit for (steal) their students and post-docs work all the time -- but now anyone with their nose in the air can just outspend the graduate students and postdocs? It's obvious that this will create an arms race, which of course the little guy will lose.
    Unless you're a committed anti-copyright ant-trade secret anti-patent activist -- you're shooting at the weak guys, not the strong guys. I have trouble taking such an approach seriously (or treating it as honest). This is not where secrecy is delaying science -- in the initial investigatory stage.

  • christina says:

    Not that I agree with the FIOA request, but one must question if publishing in journals that require a subscription to access is really putting tax-payer funded research results in the public domain.
    I am sure the requester has access, but this discussion brings up that larger question.

  • Heather says:

    As I wrote in response to Dr. Isis, I am also shocked by this situation. I've written about my reaction to it here:
    http://network.nature.com/people/etchevers/blog/2009/07/27/open-access-redacted
    (I'm lazy with html sometimes. So sue me. On second thought, don't.)
    I find parallels with Simon Singh's libel case for publicly demanding that the British Chiropractic Association back up its claims that chiropractice can cure infantile colic and a number of other ailments not clearly linked to a sore back. They responded by sending a lawyer to get Simon to retract what they considered an insinuation of false publicity, rather than a list of articles supporting their assertions. Usually it is so much simpler and more honest to just speak to a person directly, without resorting to legal threats.
    Christina, surely you know that (U.S.) publicly supported biomedical research requires all NIH-funded recipients to deposit an open-access version of their published articles in PubMed Central? Perhaps there is not the same policy for other fields of science.
    DM, I sympathize with your last point of view, but it's a pretty nature-red-in-tooth-and-claw view of conducting research. Why not let the person who came up with the ideas have a chance to test them, given they gave themselves the trouble of writing and obtaining funding to do so? And are possibly best qualified to do so?
    Whimple and S. Rivlin expressed the point of view that science would move faster by allowing ideas to be public as soon as they are approved for funding. I submit the concept of an embargo for their consideration (as well as for DrugMonkey's).
    After all, if all the young competition is eliminated by practices such as these, and it easily could be, who will be coming up with the free good ideas to be misappropriated in the name of potentially (and this has yet to be proven) advancing science a little quicker? Rather, give everyone some time, and take a longer view.

  • Curt Fischer says:

    I will have to add frog to the list of people who seem to be reacting to information that CPP and the letter writer did not contribute in the original post.
    Why assume it is an attempt to "steal a scoop"? What does that even mean? There many possible motives to the FOIA request: (1) The requester wants to see if he is being scooped, and hurries up to publish very similar, overlapping work. (2) The requester is doing related but complementary, non-overlapping work, and the data in the grant application helps him refine his complementary, non-overlapping experiments. (3) The requester suspects that the grant in question is "scooping" or stealing ideas from his previous work, and want's to check to see if it's true. (4) etc. etc. etc.
    In scenario (2), outcomes are better for both the requester and the person who wrote CPP lamenting the request. Is scenario (2) more likely? Probably not. But it seems rash whether (1) or (2) is closer to reality. It may seem paranoid to allow for scenario (3), but given that all we have is a blog post to go on, it would seem foolish to exclude the possibility without knowing more. (3) could explain why the requester is being so rude and anonymous, for example.
    Furthermore, we need to distinguish what type of information is in the grant application. The letter-writer indicated that data, not just ideas is in the grant application, and disclosure of this data in a format not to his liking was a primary worry. That is a much different worry that stealing ideas. I don't see how disclosure of already-existing data hurts little guys in an arms race. The data is already there!
    Lastly, frog's rant is ridiculous because FOIA does not pre-empt any copyrights, patents, or trademarks that anyone could legitimately claim for their work. How does it make one an "committed anti-copyright ant-trade secret anti-patent activist" to believe that government spending should be transparent and that a government should be accountable to its people?
    The more I think about this, the more I suspect that the letter-writer might be best served in this situation by just putting up a (possibly redacted) copy of the grant application on his own web site, and simply referring the requester to his web site. It will be tough to "scoop" anyone when the data you're trying to scoop them with is already posted online. Another idea is to get the university PR office to issue a news release trumpeting the finding of the phosphorylation site. Usually, news releases are timed with the publication date of the relevant papers, but not always. You don't have to announce all the relevant details (what residue is phosphorylated, for instance), and you would get your name attached to the finding nearly instantly. Obviously this is not as ideal as getting out a manuscript ASAP, but you're still first, and your name is still attached.

  • DrugMonkey says:

    DM, I sympathize with your last point of view, but it's a pretty nature-red-in-tooth-and-claw view of conducting research. Why not let the person who came up with the ideas have a chance to test them, given they gave themselves the trouble of writing and obtaining funding to do so? And are possibly best qualified to do so?
    The NIH grant game, with funding lines of 10%, IS pretty much nature-red-in-tooth-and-claw. When it comes to careers anyway. Let us not be naive about this.

  • writer of the original post says:

    Curt- What you're not getting is two things. First, this grant is an R01. By necessity, there is a TON of unpublished data in the grant. We try to be very careful and publish only good, strong data. As such, we put out about a paper a year in journals with IFs of 8-12. I can't simply pound out the data, hope its correct and then submit it anywhere. Its not simply enough to put out an individual piece of preliminary data with no context and expect to receive any primacy. Second, in academia, we are evaluated by PEER-REVIEWED publications in good journals. Announcing our findings on websites or by news release is not feasible.
    Whimple- Abstracts of the grants are freely available online. After the science is vetted through peer review, it is published in readable format. These publications are freely available online. The public has ample opportunity to know what its funding. Like it or not, science is competitive and some think it moves faster through competition. Allowing competitors to freely obtain your preliminary data is just not right.
    Lastly, I am not saying that I want to absolutely restrict the requestor's access to my grant. I called the secretary and said I'd give it to her in its entirety with an informal email saying they'd keep it confidential. I initially assumed the requestor was simply poorly socialized in the common etiquette of science, and I went out of my way to help them get access to the grant in an appropriate manner. I bent over backwards to not let it get to this point (lawyers and such). I am the one working nights and weekends. I feed my family through my grant funding and at least 3 jobs depend on my funding. To simply say to release all this hard work and hold hands with the requestor by the campfire singing kumbaya is not going to happen in today's science.

  • frog says:

    Curt: Why assume it is an attempt to "steal a scoop"?
    Ah, give us a break. The only reason to be rude -- which it is to use legal channels without first going through normal channels -- is to try to steal.
    Unless the original communicant is lying to us (which of course is possible, but ultimately an unproductive hypothesis unless some evidence is forthcoming), yes, we should assume that malfeasance is ongoing.
    Why wouldn't you just send the PI an email requesting the information? The communicant specifically says that he/she tried to contact the original demandant, and confirmed that this wasn't merely complete political incompetence. All the cases you posit are better handled, at least initially, via normal channels -- you pick up the phone and call, you send an email, you contact a friend who collaborates with the communicant, ...
    By setting it up adversarially, you must be an adversary. And you must be an initiating adversary, because if you think the communicant is stealing your own work, the best initial approach is to get as much information as possible through normal means before creating a confrontational engagement.
    What does that even mean?
    Don't be an ass. You obviously know what I meant, even if it wasn't the smoothest phrase -- you responded to it, didn't you? That's like correcting spelling -- the weakest internet rhetorical device short of calling your opponent a nazi.
    This isn't some logical puzzle -- it's a political/social problem. And if you don't know the most common behaviors and psychologies in these fields -- the competitive and often unscrupulous behavior -- then you really shouldn't be commenting on it. If you're position is no speculation -- then you should be arguing for deleting the post and waiting for a full journalistic write-up. Another cheap rhetorical trick.

  • writer of the original post says:

    UPDATE: The FOIA request has been rescinded.
    According to our Dean of Research (after contacting their Dean of Research), "the requesting individual has been counseled on the proper use of the FOIA."
    Why wouldn't they just email/call me directly and not involve 10 other people? Strange.

  • Mu says:

    CF, the FOIA request could SERIOUSLY affect your patent rights. You have one year from first disclosure of the idea to get a patent, and a FOIA response would probably fulfill that definition. Worst case, someone reads your response, is in a competing field, and throws out a quick and dirty, to be amended later, application, in which case you set yourself up for a really bad fight on priority dates.

  • Curt Fischer says:

    frog: Don't be an ass. You obviously know what I meant, even if it wasn't the smoothest phrase -- you responded to it, didn't you?
    It certainly wasn't my intent to offend or patronize you. Instead, I was just trying to make the point that trying to "steal a scoop" is at the extreme end of a whole continuum of possible explanations for the FOIA requester's behavior. I continue to believe that basing any response to the FOIA requester on mere speculations as to his state of mind or motive is extrememly rash, to the point of being unwise. The appropriate response(s) to this situation should stem from the facts and the needs of writer of the original post. How can he protect his data? How can he retain primacy to his findings? These are the relevant questions. Is the requester an "adversary" doesn't matter much, in my view. It's an elaboration on the theme in the race-related video DM posted the other day.
    writer of the original post: Thanks for the response. I can appreciate your situation, and I can see why you don't like the ideas I was throwing around (press release, web site posting). You know far better than I what is better for your own career. But I see no obvious connection between pursuit of your own career interests in today's scientific climate and the question of what tomorrow's FOIA policy and scientific norms ought to be. I certainly understand that the playing fiend should be level -- if you are getting FOIAed all the time by anonymous people and it is seen as uncouth for you to do the same to your peers, that's unfair.
    But if NIH announced it was posting all of its funded grant applications online starting tomorrow, I do not see what the problem would be for science. The playing field would be level. Sure it would be a change for the scientific community. I personally think grant applications would likely become citable, peer-reviewed publications. (They are already peer-reviewed, and apparently involve the disclosure of novel primary research data.) And I think it would better serve the public interest, too. You say the public has "ample opportunity" to know what it is funding. But what is "ample" to one may not be to others. (I can think of one guy whose definition of "ample" is different than yours, for example... :-))
    The public policy debate, as opposed to career advice for you, needs to happen at a higher level, and involve our elected representatives. Taxpayers' voices ought to be given at least as much weight on this issue as is given to the government's grantees.

  • frog says:

    CF: Instead, I was just trying to make the point that trying to "steal a scoop" is at the extreme end of a whole continuum of possible explanations for the FOIA requester's behavior. I continue to believe that basing any response to the FOIA requester on mere speculations as to his state of mind or motive is extrememly rash, to the point of being unwise. The appropriate response(s) to this situation should stem from the facts and the needs of writer of the original post.
    What can I say, but that I think that's basically silly? We can't know enough about the original posters full situation -- the interest in a public case like this is to give some suggestions for the general class of cases, and to discuss the public implications for this sort of situation.
    We are not his lawyer, or his mother. Any statement is speculation without even knowing the names of those involved, their institutions, and having made a full independent investigation. Saying anything about the situation is rash -- unless it's directed to the greater community. At best, we can hope that some of the general ideas happen to be applicable to the poster.
    But I see my "escalate to a higher level" suggestion appears to be the ultimate resolution. That's the nature of a meta-argument like this -- it's not about his specific case, but the institutional relations and "ground-rules" it sets up, regardless of the particulars of the case. It's, in short, damn rude -- and rudeness is best settled by explicitly involving the controls over "rudeness".

  • Curt Fischer says:

    frog in #39: The only reason to be rude -- which it is to use legal channels without first going through normal channels -- is to try to steal.
    frog in #43:We can't know enough about the original posters full situation -- the interest in a public case like this is to give some suggestions for the general class of cases, and to discuss the public implications for this sort of situation.
    #43 strikes me as a much more reasonable view. I'm not if your two comments are internally consistent, but if I go by your latest post I think I agree with you.

  • frog says:

    CF: They're consistent if you accept a bit of use of hyperbole, and human experience. Yes, sometimes stupidity is involved, sometimes it's combined with malevolence, sometimes the malevolence is lesser or greater.
    But as a general rule, rudeness reflects a view of the other as an object, and therefore you can justify to yourself any bad behavior you'd like. Which, of course, leads to a high likelihood of bad behavior. Sometimes "rudeness" is part of the game -- but usually that involves applying the wrong set of rules of politeness to a game from another domain.
    So we probably agree, except that our take on human nature on what the underlying probabilities are differ. And our tolerance for metaphors and hyperbole, as well I'd guess. You also seem to expect a higher-degree of internal consistency for political/psychological issues than I do. (And I'm an AI!)

  • M. says:

    "But if NIH announced it was posting all of its funded grant applications online starting tomorrow, I do not see what the problem would be for science. The playing field would be level."
    Actually, it would completely destroy science, unless you changed everything along with it: how the jobs are allocated, how people get paid, what decides your future career... Patent law would have to be redefined from the ground up, and a very complex set of precedence laws would have to be established for grant purposes.
    Currently, your position in science depends on your publications. If you have an idea, but someone else gets the data and publishes, they get the cite. You get nothing.
    In terms of patents, you would have to immediately (along with the grant publication) patent any of the ideas that could *possibly* be true - spending tens of thousands of dollars on patent lawyers. If you don't, any good idea you have will be immediately patented by others.
    Finally, consider the risk factor. Say you are the average professor, with a lab that houses two or three postdocs and maybe four or five grad students. You have a good idea how to approach problem X. You set one of your postdocs and two grad students to start the research, and you apply for funding. It will take your lab approximately five years to answer the problem.
    Now, it may be that your grant application will be ignored, and that everything will be fine. But a competitor with a bigger lab, or a company with tens of millions of dollars to burn may notice your idea. Then they'll run the experiments in two or three years, much faster then it would take your lab to do them. And they will probably publish the results (and patent related technologies).
    Now, this seems like a win - science is moving faster. However, since you didn't get the publication, you don't get tenure. Your chances of future grants are diminished, since you have no original work to show - just ideas, but no actual data that your lab was first to publish. Furthermore, the postdoc who spent two or three years working on the project has lost the publication as well, and now has no chance of landing a better job, or having a lab of his own. To him, the years he spent working on the project are literally a complete loss: it is like having a three-year gap in your resume that you cannot explain to any future employer.
    The two grad students also lose. They'll probably be able to graduate with the data, but without publications, the job market will be extremely limited for them.
    Therefore, if grants are made public, all the incentives are for people to simply not publish their best ideas. The quality of science will go down the drain, and it will be replaced by an extremely paranoid culture of secrecy.
    The system could be changed - but you would have to change the whole system, not just this one part.

  • If you don't, any good idea you have will be immediately patented by others.

    This is totally false. It is an absolute bar to patentability that an invention was invented first by someone else.

  • frog says:

    PP: This is totally false. It is an absolute bar to patentability that an invention was invented first by someone else.
    You do know that the US is trying to bring itself to conform with the general global "first-to-file" rule for patents? Bills in Congress multiple Congresses running -- it'll get in eventually.
    And that first to invent still requires not that you have a general notion, along the lines of Specific Aim #3, but something along the lines of a blueprint? Some grants may be sufficient, others would not be -- you're not supposed to know the results of your specific aims ahead of time!
    Finally, first one to file does have precedence even under first to invent. You're talking about fighting an uphill battle, with lots of lawyers fees in the meantime and an inability to really go to market.
    All of which is moot, of course, if we go to the global system. And in any case is moot if you file your applications outside of the US. Do you think R&D companies are secret-fests for no reason at all? Just bad habit?
    At best as I understand first-to-file, the situation would make the invention simply unpatentable and in the public domain (I see in Canada that the invention must have been publicly disclosed anywhere less than one year before the filing -- by anybody).
    So, if you're suggesting that most "inventions" coming out of the grant-making apparatus be unpatentable -- well, that's a completely different issue.

  • you're not supposed to know the results of your specific aims ahead of time!

    HA HA HA HA!!! Ow, owwww!!! It hurts!

  • Curt Fischer says:

    M. thinks public disclosure of grant application at the time they were funded would destroy science.
    Currently, your position in science depends on your publications.
    http://en.wikipedia.org/wiki/Publication
    NIH publication of a funded grant application would obviously constitute a (peer-reviewed), well, publication. You could cite it, and it would constitute part of the primary literature.
    [a]ny good idea you have will be immediately patented by others.
    False for the reasons noted by CPP. I don't understand frog's follow-up. Even if a competitor stole ideas from your NIH-published grant application and applied for a patent before you did, the patent would be invalid because the act of publication would turn the "novel" invention into "prior art".
    Say you are the average professor, with a lab that houses two or three postdocs and maybe four or five grad students. [...] But a competitor with a bigger lab, or a company with tens of millions of dollars to burn may notice your idea. [...] Then they'll run the experiments in two or three years, much faster then it would take your lab to do them. And they will probably publish the results [...]
    We agree then that publication of funded grant applications will likely speed up the dissemination of knowledge to the public! That sounds like a higher return on the taxpayer's dollar to me...but your argument is that making the taxpayer wait longer to get the results they paid for is a feature, not a bug, of the current system. From a public policy perspective, how can that be true?

  • Paul Browne says:

    "We agree then that publication of funded grant applications will likely speed up the dissemination of knowledge to the public! That sounds like a higher return on the taxpayer's dollar to me...but your argument is that making the taxpayer wait longer to get the results they paid for is a feature, not a bug, of the current system. From a public policy perspective, how can that be true? "
    What you say might be true in the short term, but in the longer term this would lead to a reduction in the diversity of research as funding gets concentrated in a few super-labs, after all if the smaller labs with the bright ideas (and I'm certainly not suggesting that larger labs can't also have bright ideas) are continually getting gazumped by the larger labs their publication record and ability to secure future funding will suffer.
    The risk is that while the system becomes more efficient in the short term it also becomes less productive in the longer term.
    Perhaps an embargo period on 6 months to a year would be a good solution.

  • maggie says:

    "you're not supposed to know the results of your specific aims ahead of time!"
    - um...ok, serious question - how many people actually follow that rule? What percentage of grant applications propose work that's already been at least partially done?
    Perhaps early career researchers are more vulnerable to grant application disclosure, because they are less likely to have a pot of money to do a lot of the experiments before they officially propose them?
    "Battling dishonesty [sic] with dishonesty is maybe a bad track."
    - surely it's rampant already? Grants are, sadly, about politics more than science a lot of the time.
    "Actually, it would completely destroy science, unless you changed everything along with it: how the jobs are allocated, how people get paid, what decides your future career... Patent law would have to be redefined from the ground up"
    - and this would be a bad thing why?

  • Heather says:

    Paul made my point exactly.
    Besides, I would definitely support full publication (and not just the abstracts) of funded grant applications - but at the end of their term, or after 5 years, for example (rather than 6 months to a year). It would enable a great look at the *evolution* of the ideas exposed therein based on the initial preliminary data, because any member of the public could compare with the outcome as published and hopefully deposited in an open access repository. And other ideas exposed therein but not having been followed up on, would still be fair game.

  • hoots_mon says:

    I absolutely agree with you Heather, that if grant applications are to be made public it should be after some time has lapsed to allow the researcher to progress with the work without fear of being scooped by a more resourceful lab. One of the differences between grants and publications is usually when you write the grant, you've done very little of the work, but have laid out all your ideas. When publishing you show all your work, but as for your novel ideas, you can choose which to keep to yourself to continue to work on.
    When publishing you would normally already have a significant part of your future work underway in the time it takes to write the paper, get it published, you can hold off for a few weeks if you wanted to. This helps to eliminate scooping, because if theres an obvious next step (or one explicitly outlined in the paper) to work thats been published, its a safe bet that lab is already working on it, has some results, and you'd be too far behind to even think of taking their ideas. With grant applications, early career researchers would be disproportionally at a disadvantage, if grants were online as soon as they were funded, a big lab could use the ideas, and produce results, before an associate professor had even bought their equipment and set the lab up, using that grant money!!
    Personally, as a taxpayer, I want to make sure that the person who is being given 2mil of OUR money, is actually doing the work we fund them for, not that its being done by overseas competitors, industry who can just look up a whole catalogue of our brand new ideas through open access and pick and choose their research! Also, if someone gets an RO1 and is scooped 6 months later by another lab because they saw their grant, what are they going to spend the rest of my taxpayer money on? anything they want?

  • aurora says:

    Everyone has to comply with an FOIA request. It is the law. You can do what the government does when it doesn't want to release something. REDACT as much as possible. If they want more. Stall. Eventually you have to publish your results so speed that up.
    This is something that should become an issue for your professional society. I think that would be a better route than openly engaging the services of a lawyer. (Privately consult a lawyer.) How difficult is it to find out who is requesting when you know the secretary? You can narrow it down to a few people and publicize what they did. Shine a light on what I view has ugly competitiveness. Write about it on your website without being critical. Let people reach their own conclusions. If all else fails, remember you can do it too. Make an FOIA request for that person's stuff.

  • Mu says:

    If you don't, any good idea you have will be immediately patented by others.
    This is totally false. It is an absolute bar to patentability that an invention was invented first by someone else.

    The problem, Comrade, is that the burden of proof just got turned around. The patent office is going to grant the patent, and you, the actual inventor, have to prove that the patent application was deficient (in not listing your work as prior art) and get the patent overturned. Which is NOT easy, because a single probably not even related entry in a notebook from 5 years ago can "show" that the patent holder had been working on the same idea for years, and that actually you were trying to scope him. Result: rich lawyers, poor researchers. Ever wonder why patent trolls can amass such a portfolio of patents?

  • daedalus2u says:

    Mu, you need a refresher in US patent law. Anyone filing a patent application is required by law to list all prior art that they are aware of under penalty of perjury. That includes the patent lawyer doing the filing. Maybe an inventor would be willing to risk committing fraud on the patent office, but (in my experience) relatively few patent lawyers are willing to do so.
    If the NIH did publish grant applications, the patent office would look at them as a matter of course. I have had plenty of crazy stuff from the internet cited against me, including a MSDS sheet.
    Even if a patent issued, it would be invalid if there was a prior publication disclosing it. The patent would be of essentially zero value.

  • Mu says:

    daedalus, the problem is still that YOU have to prove it, get the patent invalidated, then find a DA willing to prosecute. If you follow today's controversies on flat-out bad patents, you can file whatever you want, and get away with it. I had a guy call me that he's patented something I'd done for DoD, and that I was infringing. It was clear he'd filed AFTER the abstract of my work was published, without referencing it, and still our company attorneys said to not even think of fighting it unless we think it's a million dollar project, which it wasn't. What is legal and what you can prove are two very different things.

  • DrugMonkey says:

    Also, if someone gets an RO1 and is scooped 6 months later by another lab because they saw their grant, what are they going to spend the rest of my taxpayer money on? anything they want?
    Yes. A grant is not a contract.
    This is standard stuff. In the existing NIH game, you start dreaming up your proposal anywhere from 9 mo to 2 yrs before you actually get the award. For a five year plan do you really think people should be working on Aim III Experiment c.2.iv that they dreamed up 6 years before? of course not. Science progresses, even if you haven't been directly scooped...

  • Curt Fischer says:

    I think we are getting to the kernel of the disagreement between Paul Browne, frog, heather, hoots_moon, and myself. They all fear a system where whoever has the resources to pile on to interesting, good ideas from published grant applications will get the good results.
    I can understand this fear. I think the American scientific enterprise has worked so well in part because of its ability to accomodate independent, creative researchers. If productive resources wind up concentrated in just a few "data machine" labs, I can see how the system would suffer.
    I'm not sure if public disclosures of grants would result in such a thing, however. If public disclosure of funded grant applications became the rule, wouldn't the scientific community lower the prestige attached to being the first to generate the data and raise the prestige attached with having the idea? If the answer is "yes", it leaves a place in our system for the little guy.
    Plus, DM in #59 gives a compelling reason for disclosure too: if you get a grant, and someone scoops you, you are free to spend the money following your other, unpublished good ideas, which presumably are scoop-proof.
    As a side benefit, it strikes me that immediate publication of funded grant applications, and the acceptance of the same as a citable source in the literature, would take influence away from the much-maligned glamor mags and their editors.

  • daedalus2u says:

    Mu, if he has the patent, he has to sue you to make you stop making, using or selling the invention. If his patent is bogus (because it was filed after the invention was publicly disclosed) and he knows it, he will never sue you.

  • jake says:

    A couple of deep breaths are clearly in order here.
    The present system, in which somebody can anonymously can FOIA a funded grant proposal, is clearly flawed. It only takes the transparency one way, and is open to abuse.
    But let's think about what the best system should be. It should promote two positive values:
    1) Rapid dissemination of results, in order to accelerate progress.
    2) Giving credit to people who do the work and generate the ideas.
    It seems to me these values would be best served by publishing the narrative portion of the proposal as a peer-reviewed paper (which it certainly is), with some appropriate time lag, perhaps a few months after the award begins.

  • Heather says:

    "Wouldn't the scientific community lower the prestige attached to being the first to generate the data and raise the prestige attached with having the idea?"
    This is an idea that has long been floating around in the Open Science movement. I keep an open lab notebook. (I remembered my html today!) But I am a little careful about what I put in it, keeping in mind that it is subject to public interpretation and that I work with human embryonic primordia. But the raw data is available, and as DM and others have noticed, no one cares much except me, since I can easily access it from my two lab sites.
    These are my ideas in real time, even more immediate than in a grant application.
    However, my take on this is that ideas are cheap by themselves. Proving which are right is expensive. I believe what many take exception to is that part of the process of proving them is stringing them together in a coherent, persuasive narrative that can be expressed as testable hypotheses. Much of the work has been done here.
    It's rather like someone else stocking up the fridge for a fancy dinner menu that they've planned entirely and for which they have already tested and prepared recipes. Then you execute the meal, and get all the credit from the patrons of the restaurant (and the next round of funding given since you have established some credibility in haute cuisine), and thereby eliminate the person who did the majority of the work up to that point. Who's to say you are actually qualified to come up with any other creative meals on your own? This is the part that feels fraudulent, and will reduce creativity in the scientific establishment in the long run.
    On the other hand, I'm all for competition and diversity, so Jake's idea is not a bad one for a PNAS-style NSF/NIH grants journal. I'd add that in an ideal world, this should be free of access and entirely available online, because imagine the quantity of paper otherwise! And do we really want to be paying more government employees to issue a journal when that money can be used for other scientific projects, including the expensive and ambitious ones that might not work?

  • qaz says:

    Curt (and others supporting "publication" of grants) - You do realize that grants are only "peer reviewed" in the sense that study sections decide if they are plausible ideas to pursue, right? Yes, there needs to be a lot of preliminary data for an R01, but that data is _preliminary_. Certainly most grants are not funded without some knowledge of what's going to happen, but none of the grants I've ever seen (or got funded) have been certain. A lot of funded grants are "here's cool data, give me money to do all the controls to make sure it's real". We have enough trouble with the public getting overexcited about neat ideas with poor data support from the whole GlamourMagz problem. Can you imagine if the news media got a hold of a snazzy grant application with n=2?
    And what about other mechanisms, R21's, R03's, etc? They don't need preliminary data. (Yes, I know they often have preliminary data, but not always.)
    Personally, I think it'd be fine to have grants made publicly available, but as M #46 points out this would require a complete change in the system, including how awards (jobs, tenure, etc) were provided, and how credit was assigned (prizes). In particular, it would require a re-evaluation of the importance of ideas and data. (Not necessarily a bad thing in the biological sciences today IMHO.)

  • qaz says:

    deadalus2u #61 - The problem with patents is that the decision whether or not to sue depends in large parts on the depth of your pockets. One of the great things about science is that we judge correctness on data and results - in a debate between a Nobel laureate's 25-postdoc factory and some kid junior professor's small lab with one student, the one with the right answer wins. Do we really want to turn this mechanism over to the lawyers?

  • i'm a reporter covering federal funding and research universities and have written about FOIA. i don't think you should even have been told who was requesting the info. i'd like to write a story about this and would keep your identity confidential. please contact me. tdefino@aol.com. thanks.

  • Curt Fischer says:

    Theresa:
    So you believe that the secretary for the hospital making the FOIA request should be *required* to conceal their identity? The writer of the original post said that the secretary emailed him directly. That obviously means that she willingly disclosed her identity. So I can't figure out why you "don't think you should even have been told who was requesting the info."

  • writer of the original post says:

    Curt-
    For the THIRD time, I was contacted by the FOIA directly. The requesting secretary contacted the government via the FOIA office. The FOIA office then contacted me. I called the requesting secretary after the FOIA office gave me her name.

  • Curt Fischer says:

    writer of the original post: I was contacted by the FOIA directly. The requesting secretary contacted the government via the FOIA office. The FOIA office then contacted me. I called the requesting secretary after the FOIA office gave me her name.
    I'm sorry I misunderstood this until now. Apologies to you and to Theresa for the confusion.

  • I know I'm late to the party but I just happened to read this and this back to back. Note the comment at the bottom of the methods. I'd be interested to know whether people feel this is a reasonable use of FOIA.
    The difference in this case is that the proposals were requested from NIH not the researchers for a meta-research project. The names of proposals and text extract are in the supplementary information of the paper. Also they received only a subset of the proposals requested and appear not to have complained about them. There is also a reference to an NIH policy on FOI requests.
    I can see an argument that FOI is appropriate because the researcher needed reasonably comprehensive access to a set of proposals to carry out the research and they almost certainly wouldn't have got that from the researchers. Also they probably couldn't have got the complete list of relevant proposals except via FOI. On the other hand you'd think that maybe working with the NIH and the grantees might be more effective (at least until the results became clear).

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