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Woods Hole Oceanographic Institution researchers call for legal protection for scientists’ private e-mails

Woods Hole Oceanographic Institution scientists, forced by a court earlier this year to turn over confidential e-mails to BP about the Deepwater Horizon oil spill, are calling for more legal protections for researchers’ private communications.

BP won access to the e-mails as part of a federal government lawsuit against the company for damages resulting from the 2010 Gulf of Mexico disaster.

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The Woods Hole researchers were involved early on as volunteers to help BP and the government estimate how much oil was flowing from the leaking well. The company argued that the Woods Hole scientists made errors in their calculations and that it needed to see all correspondence to determine why.

Writing Thursday in the journal Science, Woods Hole researcher Richard Camilli and colleagues said the type of e-mails that BP won from the institution in June can be filled with lively debate, dead-ends, skepticism, and challenges.

He said in an interview that the institution was willing to comply with BP’s request for 50,000 pages of documents, computer code, reports, and raw data so the company could analyze and confirm the findings — but not the private 3,500 e-mails the company received that dealt with the “scientific deliberative process.”

Those e-mails included communications with co-authors, editors, and journal reviewers.

“If you make that deliberative process so it can be used by one of the litigants, that hampers the process of independent scientific review,” Camilli said. Colleagues at other institutions have told him the Woods Hole experience with BP would make them reluctant to aid in a similar way because their private communications could be taken out of context and misconstrued.

‘If you make that deliberative process so it can be used by one of the litigants, that hampers the process of independent scientific review.’

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“This is the kind of chilling effect on scientific research that is detrimental to society,” Camilli said.

Once, such deliberations were done in person or by phone, but e-mail has provided a written record that companies or other special interest groups are gaining access to through courts or Freedom of Information Act requests. Legal specialists say such efforts by private interests appear to be growing.

The scientists’ estimate of oil flow matters because the billions of dollars BP will have to pay in damages is likely to be based in large part on how much oil was spilled during the crisis.

The US government has relied on some Woods Hole work that estimated there were 4.9 billion barrels of oil spilled during the crisis.

BP has said in legal correspondence that the Woods Hole work is “fundamentally flawed” and researchers made “puzzling, apparently arbitrary, suspiciously offsetting” decisions in their work. The company says the amount of oil released is probably far less.

In a statement released Thursday, BP said it “is a company of scientists and engineers, and the subpoena served on Woods Hole is in no way an attack on science.”

The statement said such information is regularly sought in court and in this case “the Court found, among other things, that there was a demonstrated need for the materials because there was no other source for them.”

Woods Hole officials fought the request, but ultimately the court ordered them to produce the e-mails or risk being found in contempt of court.

After weighing the possibility of being found in contempt, paying substantial fines, and possibly jeopardizing federal grants for the entire institution, Woods Hole decided reluctantly to release them, said Christopher C. Land, a Goodwin Procter lawyer representing the institution.

In the Science piece, Camilli and his colleagues noted that the courts have ruled inconsistently on the issue of protecting the scientific process over the years.

They highlight one case last year when a federal court denied the drug company Bayer’s demand for confidential comments from outside scientists who peer-reviewed a study, saying confidentiality must be upheld and “anything less discourages candid discussion and weakens the process.”

The authors called for federal legislation to protect researchers from “legal harassment by interests seeking to silence scientific inquiry or retribution for publishing independent research findings.”

At the least, they wrote, scientists need to be granted the same legal standing as litigants.

But Woods Hole researchers and officials made clear they do not see it as their role to push legislation. While the institution’s president and director Susan Avery has reached out to congressional staff members and colleagues to raise awareness of the issue, “we can only take things so far, we are not lawyers,’’ Avery said an interview this week.

She said organizations such as the National Academy of Sciences and the American Association of University Professors could start a dialogue on the issue.

Legal analysts say there appear to be more cases of critics trying to discredit scientists by bringing to light the deliberative process, when ideas and arguments are not fully formed.

“My sense is that it is increasing,’’ said Rachel Levinson-Waldman, former senior counsel for the American Association of University Professors who is now with the Brennan Center for Justice at New York University.

She said she has noticed an increase in Freedom of Information requests for scientists’ private correspondence, such as those aimed at US climate scientists by interest groups hoping to discredit their work. The demand to look at e-mail communication, she said, “seems designed to embarrass and chill . . . and driven by an agenda.”

The Union of Concerned Scientists, a research and advocacy group, is so concerned over the issue that it has created a booklet for scientists to respond to criticism and personal attacks. Called “Science in an Age of Scrutiny,” the document gives advice on how scientists should respond to demands for private information or attacks.

“Science publishes its data when it’s ready for prime time,’’ said Michael Halpern, program manager at the organization. If scientists are forced to turn over private e-mails, he added, “it would have a stifling effect.”

Carolyn Y. Johnson of the Globe staff contributed to this report. Beth Daley can be reached at bdaley@globe.com. Follow her on Twitter @Globebethdaley.
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