COURT SANCTIONS WITHHOLDING OF CONDOR LEAD POISONING DATA FROM PUBLIC

ON MARCH 21, 2012. POSTED IN LATEST NEWS, LEGAL NEWS

Santa Cruz, CA – The National Rifle Association (NRA) and the California Rifle and Pistol Association Foundation (CRPAF) were recently thwarted in their efforts to obtain the original data used by researchers in two U.C. Santa Cruz papers.  These papers were heavily relied upon by lead ban proponents to justify banning the use of traditional lead ammunition for hunting by claiming that there is a causal link between hunters' use of lead ammunition and health problems found in California condors.  

On December 7, 2011, Judge Jeff Almquist denied CRPAF’s request that the Court order U.C. Santa Cruz to provide public access to the original data collected by its researchers in these papers.　CRPAF sought the data so its own scientists could independently evaluate the data and determine the validity of claims.  To obtain the underlying U.C. Santa Cruz data and the data behind a U.C. Davis study regarding lead ammunition, NRA/CRPAF sent multiple public records requests to the University of California system.  The requests related to these taxpayer-funded research projects were obstructed by various governmental agencies and the universities.  

Despite the fact that taxpayers paid for these studies, both U.C. Santa Cruz and U.C. Davis initially refused to produce information and original data, claiming they were exempt from production under an alleged "researcher's privilege."  Both universities claimed that information relating to scientific research is privileged until that study is published in a peer-reviewed journal.  The Public Records Act, however, contains no exception for a "researcher's privilege," and such unpublished studies are often used by researchers to lobby and to influence government agencies like the California Fish and Game Commission (Commission) in public policy debates about the regulation of lead ammunition.  This is a clear double standard.  

Apart from the claimed researcher's privilege, U.C. Santa Cruz also made excuses to delay turning over the data and information, claiming it will take approximately two years to provide responsive documents relating to already published papers.  U.C. Santa Cruz's actions forced the CRPAF to initiate litigation to obtain the requested information.  

Despite the fact that there is no such privilege, Judge Almquist upheld the U.C. Santa Cruz "researcher’s privilege" defense, and further ruled that the public interest in disclosure of any unpublished data (i.e. "cherry picked" data), was outweighed by the "researcher’s privilege" and not disclosing the data.　 In other words, the Judge ruled that it was more important to maintain the researcher’s reputation (i.e. not being subject to critic or criticism outside the perverted peer review process), than to allow public access to the data.  In short, the CRPAF was prevented from verifying the findings and conclusions in scientific publications that were paid for by the taxpayers and are being used to influence regulatory policy and rulemaking.  

Judge Almquist’s Order specifically states “[t]he public is not entitled to data that are excluded from [published] studies as that would interfere with the deliberate process of researchers deciding what data to include and what to exclude because [in the researcher’s opinion] it is anomalous or irrelevant.”  

Judge Almquist’s ruling highlights the numerous obstacles frustrating the NRA/CRPAF's pursuit of underlying data behind taxpayer funded “research” that is being used to advocate proposed lead ammunition bans in California and in other states. It also demonstrates the lengths to which researchers will go to prevent the release and scrutiny of the data.  To view copy of the Order, click here.  

The CRPAF’s lawsuit is based on a public records act request made by CRPAF on December 1, 2010. That request was made in order to determine why the paper titled, Ammunition is the Principal Source of Lead Accumulated by California Condors Re-introduced to the Wild, aka the "Church Paper" published in 2006 by several U.C. Santa Cruz researchers (among others) appears to omit consideration of certain "original data" collected for that publication.  In particular, Federal brand ammunition samples were taken as part of the research leading up to the publication of the article.  The paper, however, does not discuss Federal brand ammunition samples. In other words, they had not incorporated all the relevant "original" data into their findings and had omitted underlying data that did not support their conclusions.   In short, they were "cherry picking". To learn more, click here.  

In follow up to Judge Almquist’s Order, CRPAF requested that either Dr. Donald Smith or Dr. Molly Church (two of the co-authors of the “Church Study”) provide CRPAF with a written statement under penalty of perjury explaining why discussion of Federal brand ammunition appears to have been omitted in their publication. That request was denied – through U.C. Santa Cruz’ attorney.  

In June 2011, the NRA and CRPAF made presentations to the Commission highlighting just some of the difficulties encountered while seeking to obtain these vital public records. Obstacles to NRA/CRPAF efforts include claims that data has been destroyed and/or withheld on dubious legal grounds. To review the letter to the California Department of Fish and Game (“DFG”) laying out these problems, click here. To view the Commission meeting video, click here for part one and click here for part two.  

After the NRA/CRPAF June 2011 presentations, Commissioner Richard B. Rogers expressed great concern about the problems with public access to data, saying that the situation is “quite troubling.” Commissioner Daniel M. Richards went on to say, “I think the good news I've heard across the Commission . . . is that there is unanimity that everybody wants to have all of the data to make the right decisions.”  

But the stonewalling continues. In response to claims by lead ban proponents that lead ammunition is the primary source of poisoning in condors and other avian species, and their efforts to ban the use of lead ammunition nationally, the NRA has engaged the expertise of environmental experts and scientists, as well as the civil rights and environmental law firm of Michel & Associates. For several years the NRA and CRPAF have been spearheading an effort to gather information and science to oppose the steady expansion of lead ammunition bans in the United States. Our involvement includes coordinated efforts with interested parties to plan, research, conduct analytical work and prepare numerous formal requests for documents from government agencies via Public Records Act requests and Freedom of Information Act requests. NRA's team has been engaged in the long and arduous process of obtaining and analyzing tens of thousands of pages of public records concerning information relied on to propose and allegedly support lead ammunition bans, including “original data” and internal documents not previously obtained or reviewed by independent analysts or the public at large. The effort has already resulted in the rejection of several proposed and ill-conceived lead ammunition bans in California.