Doctor wins access to names of rejected grant applicants

From the Fall 2001 issue of The News Media & The Law, page 35.

Dr. George Kurzon believes that the National Institutes of Health screens out necessary research, spending billions of taxpayer dollars each year on research, yet turning down scientists with important ideas.

“Science is not that far out of the trees,” the retired New Hampshire physician says, and “you’ve got to give the people with the ideas as much encouragement as possible.”

If they can’t get funding, they become discouraged and leave science, he says.

So Kurzon, who lives in Peterborough, N.H., and serves on the New Hampshire Biotechnology Council, would like to set up a Web site of scientific ideas in need of funding and make it available to funding sources outside of government who might be more receptive.

Thanks to a federal district court in Concord, N.H., Kurzon will get a listing of rejected applicants.

In July, Kurzon won a Freedom of Information Act case against the U.S. Department of Health and Human Services for the names and addresses of unsuccessful applicants for the National Institute of Mental Health’s May 1999 round of grants. In October, the agency decided not to appeal.

This was not Kurzon’s first victory for records. He filed a similar request in the 1970s with the National Cancer Institute and was ultimately successful before the U.S. Court of Appeals in Boston (1st Cir.) in gaining access to the names of rejected applicants. However, the agency refused to continue honoring that precedent after a 1989 ruling by the U.S. Supreme Court in Department of Justice v. Reporters Committee (See NM&L , Spring 2001).

The high court in the Reporters Committee case changed the balancing test for invoking privacy exemptions to the FOI Act, stating that the public-interest side of the scales would only be served by information that shows something about government operations and activities. Information may be private if it is intended for a particular group of persons and is not freely available to the public.

Weighing Kurzon’s claim that the public interest requires disclosure against HHS’ contention that the applicants’ privacy interests would be violated, the district court ruled in favor of Kurzon. The government cannot claim the privacy exemption to the FOI Act unless disclosure would constitute a clearly unwarranted invasion of personal privacy, the court said.

Health officials initially denied Kurzon’s FOI request in July 1999, citing the privacy exemption. Kurzon sued in federal court in Concord, N.H. The agency gave him the professional addresses but not the names of applicants, a move that did not deter the doctor from pursuing his request in court.

Kurzon’s attorney wrote that privacy interests were minimal, claiming that because NIH rejects two-thirds of its applications, not much stigma attaches to denial. Kurzon gave the court affidavits from scientists saying that they had suffered no personal or professional embarrassment from NIH’s rejection.

In any event, disclosures about the applicants were about their professional, not their personal lives, Kurzon’s attorney told the court.

And the public’s interest is significant, he said. Without access to unfunded as well as funded proposals, no one outside of NIH can evaluate the agency’s grant-making; no one could tell if it meets the congressional goal of serving the “scientific needs of the Twenty-first Century.”

The government claimed that names and addresses revealed nothing of interest to the public and that in a climate of intense competition for scarce grant dollars a researcher’s failure to obtain such funding is “personal and private” information.

The government presented affidavits from NIH personnel and former personnel that the stigma of rejection is “real and significant,” claiming that young researchers would be especially hurt by the disclosures. Also, applicants had come to expect that the government would “protect” the applications, health officials argued.

The agency also said the list of names and addresses would shed no light on government activities. It would be “complete speculation,” officials said, to claim that even knowledgeable individuals would learn anything from this list.

The court disagreed, saying that the harm suffered by unsuccessful grant applicants was a lack of funding, not stigma.

“[W]hile the record shows it is better to be successful than unsuccessful, the record does not show that unsuccessful applicants have a significant privacy interest in withholding their identities,” it ruled.

The only means for investigating NIH’s application review process appears to be through contacting individual scientists, the court noted, and so Kurzon had identified a public interest in the information.

Because the interest turns on a “derivative use” of the information, the weight of the public interest is uncertain, the court wrote. But in the balance, the court said “disclosure, not secrecy” is the dominant purpose of the FOI Act. The government did not show a clearly unwarranted intrusion on personal privacy, the court said in determining that Kurzon was entitled to the names. (Kurzon v. Dep’t of Health and Human Services) — RD