The Sunshine Project
News Release
7 October 2003
Safety and Security in Secret:
Public to Have No Access to UTMB Biosafety CommitteeA Bizarre Texas Law Trumps Federal Guidelines and the Texas Public Information Act
Austin - In a ruling a late yesterday, the Texas Attorney General rejected the Sunshine Project's Public Information Act request to review documents from the University of Texas Medical Branch (UTMB) Institutional Biosafety Committee. UTMB is focusing on biodefense research and was recently awarded new federal grants to become a national center for work with the most dangerous disease agents. The Attorney General's ruling means that the public has zero ability to examine UTMB's measures to try to avoid human health and environmental damage resulting from its research on biological weapons agents.
The decision is disappointing; but not surprising, according to Edward Hammond, Director of the Sunshine Project, "Because of a variety of circumstances, I think that this will prove to be a pyrrhic victory for the University of Texas. Arms control, health, and safety advocates from across the country are concerned about the expansion of the US biodefense program and are demanding transparency and explanations of its activities," says Hammond, "The University of Texas has fought for and won its right to be secretive; but the cost will be stigmatizing. It will erode public confidence in the safety and security of biodefense research in Texas and across the country."
The ruling comes under a strange Texas law. UTMB's Institutional Biosafety Committee is established under federal Guidelines for research safety. The IBCs purpose includes review and approval of measures to protect the health of citizens and the environment from the possible release of dangerous diseases and genetically modified organisms from UTMB’s "hot zone" biocontainment labs. The federal Guidelines require representation of community interests on the committee and mandate that some of its records must be public. At the same time, there are no specific exemptions in the Texas Public Information Act to prevent release of the material requested by the Sunshine Project. Instead, the University depended on a different law to advance its secrecy claim.
UTMB sought, and received, designation of its IBC as a "medical committee" under a strange provision of the Texas Health and Safety Code. As interpreted by the UTMB and the Attorney General, this law gives medical research institutions to right to keep secret documents from committees conformed for any purpose. The law even says that records of such "medical committees" that deal with any issue - medical or not - are immune to judicial subpoena. On top of that, neither UTMB nor the Attorney General is prepared to conclude that the federal guidelines overrule the state law. Paradoxically, while UTMB argued that the records are so sensitive that even a judge may not view them, it also argued that the records contained intellectual property that the University could sell.
What is happening, according the Sunshine Project, is a dangerous derailment of Texas law that is supposed to prevent patient medical records from being disclosed. The UTMB IBC does not deal with patient medical information; but the protection of the law has been applied to all of its records. Says Hammond "Using UTMB and the Attorney General's logic, UTMB could create a committee for any purpose, for example, to produce offensive bioweapons or to waste biodefense dollars and, under Texas law, the records of that committee would not be available to the public, not even to a court. The situation is terribly dangerous and just plain wrong. The IBC exists to protect the public and the environment, and the public must have access to it and its records. The secrecy will not stand up to scrutiny."
The next step in the Sunshine Project's debate with UTMB will be a decision from the Office Biotechnology Activities of the National Institutes of Health, NIH is investigating UTMB following a Sunshine Project complaint. NIH has not put a date on its decision. NIH may or may not directly address the relationships between NIH Guidelines and Texas law, although contradictions are apparent. In contrast to UTMB’s position and the Texas Attorney General’s ruling, the NIH Guidelines require that minutes of the IBC meetings and some other documents be released upon public request. It is unclear how UTMB plans to handle the discrepancies, although it has suggested to NIH that Texas law should rule.
Hammond concludes, " Although a setback for the Sunshine Project, this ruling does clarify some of the problems with public accountability of research on biological weapons agents. The Project will persist in requests for this type of information from institutions in Texas and across the country. Sunshine has several additional cases already moving toward the Attorney General’s office in Texas. We will work, over the long-haul, to establish openness in research on bioweapons agents because it is required to ensure public safety and US treaty compliance."
Legal briefs in the case are available on the Sunshine Project website, including a brief from the Freedom of Information Foundation of Texas in support of the Project's request, as well as information concerning the NIH Guidelines.