February 23, 2017

Effort to make college research secret stalls over fears it goes too far

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Statue of a Lobo on the University of New Mexico campus.Photo Credit: sumrow cc

Angelo Artuso warns that a move by lawmakers to shield some university research from the public eye could lead to harrowing consequences.

At a Wednesday morning House committee hearing, Artuso invoked some of history’s darkest state-sanctioned university research projects. For decades, researchers at Tuskegee University studied the effects of syphilis by pretending to offer infected Black men free health care. And several colleges and universities from the early 1950s until 1973 were involved in Project MKUltra, a CIA program that used drugs like LSD unknowingly on human subjects to experiment with mind control.

Programs like those, involving government-funded atrocities at institutions of higher learning,  Artuso maintained, would remain hidden at New Mexico public higher education institutions under a bill sponsored by state Reps. Jason Harper, R-Rio Rancho, and Carl Trujillo, D-Santa Fe. The bill, now stalled in the committee, seeks to make “proprietary information and research data” held by public colleges and universities not public.

“This bill erects a pretty strong wall of secrecy on any records deemed research by universities,” Artuso told lawmakers at Wednesday’s hearing.

There’s also another dimension to Artuso’s opposition. Artuso filed a complaint with the state nursing board last year on behalf of Protest ABQ, an anti-abortion advocacy group, against a nurse practitioner at Planned Parenthood for wrongly prescribing the drug mifepristone, which causes abortions. The women’s health provider countered that under state law, nurse practitioners are allowed to prescribe the drug.

In his public comments to the House Education Committee, Artuso did not bring up the highly-publicized fetal tissue research at the University of New Mexico. Another anti-abortion group, New Mexico Alliance for Life, obtained several documents from the university’s fetal tissue research program last year through open records requests and passed them onto a controversial Republican-controlled U.S. Congress subcommittee that condemned the practice.

In an interview, Artuso said he believed the bill, if passed, would exclude such public information obtained by New Mexico Alliance for Life. He also warned that it would violate the state’s law guiding disclosure of public records, which Harper and Trujillo’s bill originally sought to amend.

Harper, Trujillo and New Mexico State University General Counsel Scott Field presented the bill as an attempt to protect proprietary information when colleges and universities work on projects with private companies.

“With today’s world, proprietary information in research is key to the product in the end,” Trujillo told the committee. “If you don’t protect that information, it’s hard to enter agreements with parties.”

Harper cited  an example from his job as an engineer at Sandia National Laboratories, mentioning he worked on a radiation sensor recently. If someone filed a records request with a university assisting with development of the radiation sensor, Harper said “proprietary information” from that sensor could be potentially used by a competitor or adversary.

“We want to make sure someone can’t get to the schematics of the radiation sensor,” Harper said. “At the same time, we want to be transparent about public funds.”

Harper emphasized that he aims to keep only trade secrets and proprietary information secret, not types of university research or the entities funding the research. But even Harper acknowledged that the bill is currently too broad in its definitions of what documents would be excluded from the public record.

State Rep. Jim Dines, R-Albuquerque, emphasized this point while referencing his “20 years of handling cases on behalf of open government” as an attorney. Dines conceded the spirit of the bill was necessary, but said it still needed to be “narrowly tailored.” The bill’s definitions of “university research records” that would be exempt from the public records, Dines argued, were too broad.

“In essence, it looks like anything that happens when you step foot on the campus can be kept secret,” he said.

Fields raised examples of information the bill would protect, including unpublished research still in the draft stages before peer review.

“One of the major tenets of tenured professors is publishing scholarly works,” Fields said. “Once the information is out there, the academic journals don’t want to publish the information. There’s a need to protect that work from publication, from use until the professor or academic has it in a peer-reviewed journal.”

Dines countered that none of Fields’ descriptions of publications were included in the bill as work meant to be withheld from the public.

“I think you’ve proven my point,” Dines said. “You have defined what you said it means, and that is not in here.”

Originally, the bill’s sponsors sought to amend the state Inspection of Public Records Act, but Fields said they dropped that after discussions with the New Mexico Foundation for Open Government, an organization that advocates for government transparency.

Now, Harper and Trujillo’s bill would add a new state statute called the “University Confidential Records Act” instead.

“We’re basically putting in here, in other law, what we’re defining is not public records,” Harper said.

Even so, Artuso argued that IPRA would still trump any new public records law.

“The state policy [of IPRA] is to bring the greatest transparency possible from the public body,” Artuso told NM Political Report.

During debate, state Rep. Christine Trujillo, D-Albuquerque, made a motion to table the bill, which would have effectively killed it. But House Education Committee Chairwoman Stephanie Garcia Richard, D-Los Alamos, said she was “reluctant to accept the motion at this time” and refused to allow a vote to table.

A motion to table is usually non-negotiable and goes directly to a vote. A tabled bill can still be brought back up for discussion.

State Rep. Jim Hall, R-Albuquerque, instead motioned to pass the bill “with no recommendation,” which Garcia Richard and others on the committee also had trouble with.

“Even the representatives [of the bill] say they’ve got some problems with their own bill,” state Rep. Sheryl William Stapleton, D-Albuquerque, said. “So what are we going to do, move it out [of committee]?”

The lawmakers then agreed to do nothing, telling Harper and Trujillo to go back and work to narrow the definitions of types of documents that would be excluded from the public.

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