by Chetly Zarko

   

The newly discovered document, in a file with the Executive Summary reported on last week,  is dated June 20, 1994 (one month after the MSS Executive Summary). It is addressed from John Matlock (Assistant to Vice Provost for Academic and Multicultural Affairs) to Lester Monts (the Vice Provost for Academic and Multicultural Affairs). Matlock outlines his plan of action for the Michigan Study.  In order, the three of the first four points are to "...copyright all survey instruments," (ironically, this harms the FOIA officer's current justification for withholding the data, see below), "revamp the first year report,"  and "formalize a process for ... others use of the Michigan Study data.  This will generally involve Gerry [Gurin] and I reviewing the requests and checking with others to ensure that the proposals don't clash with anything that they are doing." It is scientifically offensive that two of the original researchers would be able to control their own "peer review" process, especially to "ensure that the proposals don't clash" with anything the Multicultural Office was doing.

    The Michigan Freedom of Information Act (FOIA) request for the raw dataset was placed with the U-M on April 5, well before this author had fully published (April 24) his findings related to the Gurins' contradictory reports.  The FOIA office dated its denial April 22. Key officials, including the FOIA officer, must have been aware of this author's conclusions however. A reporter for a regional newspaper had interviewed the FOIA officer and several high-level officials at the April 17th Board of Regents meeting regarding their reaction to a draft of my final publication. The results of those interviews remain unknown, and the reporter has yet to decide whether to publish a version of the story.Zarko Research only received the denial on April 30, due to the author's personal relocation from Kalamazoo to Ann Arbor.

    U-M officials must have been aware of the stakes in actually releasing the source data. Losing a FOIA case in a state court six-months to a year down the road is a more than acceptable price compared to jeopardizing a possible victory (the high court's decision being unknown) in the U.S. Supreme Court.

   Based upon a quick reading of the law, Michigan's use of the CRIA as justification for withholding is clearly a delay tactic with no legal or factual merit. This author had originally thought the University might use the Federal Family Educational Rights and Privacy Act to withhold the data, which would have been legitimate if student names were in the dataset.  That defense wasn't possible however, because background documents found inside the same folder as the MSS Executive Summary indicated that students were coded with identifications like "Q19A" or "Q19C".

    CRIA was designed to protect the interests of private corporations or other outside parties that voluntary submit "commercial information" and/or to give Michigan universities an ability to delay FOIA release of internally-sponsored research generally for up to one year after the initial findings are published. This delay in releasing supporting data gives universities time to file for copyright or patent protections.  Once they have copyright or patent protection, or a reasonable time to procure it, they no longer have a right to keep from the public the original data. The MSS was done completely in-house and the first final report written about it was in 1994. For internally-sponsored studies, CRIA outlines a simple (but long) four-step test to withhold information.
   Most broadly defined, "intellectual property" can be withheld only "until a reasonable opportunity is provided for the information to be published in a timely manner in a forum intended to convey the information to the academic community." Under all possible factual scenarios, U-M has already published (albeit contradictory sets of) findings from the dataset. Withholding the underlying data would not be legal.

    A second possibility would be any "original works of authorship," but they can only be withheld "until a reasonable opportunity is provided for the author to secure copyright registration, not to exceed 12 months from the date the work is first fixed in a tangible medium of expression." 12 months has expired even if we accept the modified final report of 1997 or the expert testimony of 1998-1999 as the publication of findings to "the academic community." Furthermore, a 1994 supporting document to the secret and contradictory Executive Summary suggests that U-M immediately copyrighted the MSS dataset and restricted access to the dataset only to persons doing "approved research."  Once copyrighted, or once the 12 months expired, U-M could no longer legally withhold the background data.

    The third and fourth possibilities both involve patents and "trade secrets" with "commercial value." Aside from never having attempted a sell the dataset (it has no "commercial value"), the dataset is more like a written work than it is an "invention" (well, maybe it is an "invention" in a different sense). Unless we stretch ourselves so much as to consider manipulated data or the political gains made by successfully deceiving the U.S. Supreme Court into a racial preferences victory as having a "commercial value," there is no way CRIA can form a basis to deny peer review of a dataset already used in other published findings.  CRIA anticipates and even requires such "peer review," after the proscribed time.

    In fact, earlier this spring Michigan was criticized in several opinion editorials for legally using these provisions to delay by years the introduction of a cancer drug so that it could maximize all 17 years of patent rights after the drug's FDA approval.  As a state entity, presumably doing research for the benefit of all taxpayers and all of mankind, the University of Michigan bears a particular burden to disseminate knowledge gained by research.  To the extent that a cancer patient may have died by not having had earlier access to a specific drug, Michigan's leaders may have blood on their hands. To the extent that the Supreme Court's decision on racial preferences may be affected by proferring manipulated research that has never been (and presumably now will never be) "peer reviewed," Michigan's leaders have set the dangerous precedent of misusing science to justify civil rights violations. The use of such a tactic is abhorrent to any semblance of the scientific process, democratic politics, or justice.

    An anonymous attorney has said that in many situations, "There is no law. There is only money, power, and politics." Michigan's work in delaying the publication and peer review of scientific output in this case of historic importance has no basis in law. It is only an abuse of our money and the institution's relative political power. U-M's only hope is that some of the Justices of Supreme Court don't realize it in time.