How scientists can protect themselves.

While the risk of legal attack on any individual scientist is small, there are actions scientists can take to help reduce the risk of an attack, especially from invasive FOIA requests.

Professional correspondence and record keeping:

  • Conduct professional correspondence in a professional manner.  It is important to remember that scientists’ emails may be FOIAed, otherwise disclosed due to legal actions or even, sadly, hacked.
  • Do not use professional email accounts for personal emails and vice versa because of the risk of FOIA requests and similar inquiries.  FOIA only applies to government records, so separating personal and professional emails reduces the likelihood that personal correspondence will be affected by a FOIA request or other investigation.
  • Scientists should ensure they are complying with document and data retention requirements. The applicable legal requirements depend on:  1) the scientist’s employer, 2) the scientist’s funding sources, and 3) whether litigation is likely.  Employees and consultants of public institutions, including government scientists and public university researchers, should retain all public records (the precise determination will vary by state, but generally, documents relating to public business).  Similarly, public funding may require certain recordkeeping:  for example, National Science Foundation (NSF) grants stipulate that research data, including databases, must be shared.  Finally, documents must be retained if litigation is “reasonably anticipated,” meaning there is credible information that a lawsuit may be brought at some point (more on this below).  Even if there are no strict retention requirements, it is advisable to keep documents for at least a few years; anyone can be made to look bad when files are missing.

If you find yourself under legal attack:

  • Scientists under attack should first remember that other scientists have been through this before and come out the other side.
  • Scientists under legal attack, or who believe an attack is likely, should promptly contact their institutional counsel or groups such as the Climate Science Legal Defense Fund, or both.  In addition to providing legal resources, CSLDF also provides emotional support by connecting scientists under attack to others who have successfully navigated such situations.  CSLDF can also assist in situations where the scientist’s legal interests differ from the institution’s own legal interests.
  • As mentioned above, once litigation is reasonably anticipated, there is a legal requirement to make a good-faith effort to preserve all documents relevant to the dispute, which can include even Facebook or Twitter messages, or documents stored on a personal computer.  Generally, an organization’s attorney will issue a “document hold notice” when necessary, which provides details on what and how to preserve.
  • Finally, if scientists must produce documents because of FOIA requests or other legal obligations, they should work with their counsel to ensure that only necessary information is released.  Personal information is very likely protected and, depending on the applicable state and federal laws, it should be possible to also protect aspects of scientists’ academic work and other intellectual property.

Note: the above discusses only U.S. laws and does not constitute legal advice.

If you are a scientist who needs legal advice, please contact us here.