In a wide-ranging order, a state circuit judge has upheld West Virginia University’s position that a researcher’s raw data, draft documents and peer review commentary are exempt from public disclosure under the state Freedom of Information Act. In addition, the court found that FOIA requests seeking essentially “everything” related to a researcher’s studies are “unduly burdensome.”

    The strongly-worded decision by 17th Judicial Circuit Chief Judge Phillip D. Gaujot came in the case of Highland Mining Co. vs. WVU, a case aimed specifically at the University’s School of Medicine. Highland was seeking essentially everything related to articles by former WVU researcher Michael Hendryx linking coal mining to adverse health effects, including draft documents and peer review comments.

    Highland filed multiple FOIA requests seeking anything in the University’s possession related to Hendryx’ research. The University declined to provide it, citing in part, the University’s deliberative process, academic freedom and the requests’ lack of specificity. Highland sued the University in 2012, claiming the refusal was not supported by law.

    As part of his deliberation, Gaujot ordered WVU to produce a sampling of the material Highland was seeking, and his decision was partly based on that review.

    In his ruling, issued March 19th, Gaujot affirmed the University’s assertion that certain documents were exempt in part because he was concerned that researchers “may temper their approaches to research questions and problem-solving and be more hesitant to think outside the box, fearing public reception of the extreme or unconventional.”

    Gaujot’s order further reflected that the “academic freedom” principles embodied in First Amendment jurisprudence are applicable to the FOIA, “especially because the right to education in our State is fundamental, ... not only is academic freedom transcendental, but so too are the First Amendment principles which lie at its heart, making them applicable not only to constitutional law, but to FOIA jurisprudence as well.”

    The FOIA was not intended to “reduce government agencies to full-time investigators on behalf of requesters,” Gaujot said.

    Finding that “that Highland’s production requests are unduly burdensome,” Gaujot struck down all of Highland’s claims and dismissed the case.

    Currently a professor of applied science at Indiana University, until recently Hendryx was associate professor in the Department of Community Medicine and director of the West Virginia Rural Health Research Center.

-WVU-

jb/03/28/14

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