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FOI request would serve study of medical research reviews

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    NMU         NEW HAMPSHIRE         Freedom of Information         Aug 3, 2001    

FOI request would serve study of medical research reviews

  • The identities of scientific investigators who were not awarded grants by the National Institute of Mental Health must be disclosed to a researcher investigating the agency, a federal district court ruled in July.

A retired New Hampshire physician who believes that the National Institutes of Health rejects funding applications for important and meritorious scientific research won a Freedom of Information Act case against the U.S. Department of Health and Human Services July 17 in federal district court in Concord for the names of scientists who sought and were denied research grants by the National Institute of Mental Health.

The court said that the requester, George M. Kurzon of Peterborough, had identified a public interest in the disclosure: Only through contact of the unsuccessful applicants could the public learn about the review process which leads to rejection.

The government, on the other hand, had not shown that disclosure would clearly intrude upon privacy, the court said. Affidavits from agency personnel had only shown a “belief” that the scientists would feel stigmatized if the public knew their applications were rejected. They had not shown any actual stigma, the court noted.

The court said that the recognized public interest is of “questionable” weight in showing what the government is up to because the names by themselves do not tell anything about the government — the public must contact the named individuals in order to investigate the agency’s practices. However that public interest does outweigh any privacy interest in these records, it said.

The court said the privacy exemption only applies where there is clearly an intrusion and that exemptions are to be narrowly interpreted.

Kurzon, who serves on the New Hampshire Biotechnology Council, sued for the records after NIMH denied his request in 1999 for the names and addresses of all scientists who were unfunded in the last round of extramural grants made by NIMH. The agency said that identification as rejected applicants could cause “potential harm to their reputations, professional status and employment opportunities.” Kurzon showed the court affidavits from scientists who said they would feel no stigma from the disclosures and noted that most applications are rejected.

The doctor said he hopes to contact the rejected scientists with an eye to posting information about them, along with some basic synopsis of their ideas, as a resource for funders from outside the government who might be more receptive to their ideas.

Kurzon said there is widespread concern about NIH funding decisions, reached through a highly secretive peer review process, but he said that individual scientists are hesitant to criticize or evaluate the program for fear their objections might jeopardize their own future funding requests.

He filed a similar request in the 1970s with the National Cancer Institute and was ultimately successful in gaining access to the names of rejected applicants in 1981 in a Freedom of Information Act case before the U.S. Court of Appeals in Boston (1st Cir.).

Because the U.S. Supreme Court in 1989 changed the balancing test for invoking the privacy exemptions to the FOI Act, stating that the public’s interest in disclosures under the law would only be served by information that shows something about government operations and activities, the agency did not rely on the decision in Kurzon’s earlier case.

(Kurzon v. HHS; Attorney: William Chapman, Concord, N.H.) RD

© 2001 The Reporters Committee for Freedom of the Press

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