When scientists employed by universities, nonprofit institutes, or corporations publish scientific studies, they routinely make their underlying research data available to peer reviewers and anyone else who is interested. A recent D.C. Circuit decision¸ Pavement Coatings Technology Council v. United States Geological Survey, 995 F.3d 1014 (D.C. Cir. 2021), confirms that federal government scientists should be no different. They cannot shield their published work from professional, industry, or public criticism by invoking Freedom of Information Act (FOIA) Exemption 5—the “deliberative process privilege”—as a reason for refusing to disclose their “exploratory” research data.
David A. Kanter of Swanson, Martin & Bell, LLP handled the district court case. I teamed with David to handle the D.C. Circuit appeal.
Our Expert Analysis, published by Law360 on October 5, 2021, discusses the D.C. Circuit’s opinion and its significance to companies whose products or services are the subject of federal government-conducted scientific research.