Rejected Applicant's Petition Says Agency Kept 'Secret' Filing System

For over 14 years, the National Science Foundation has systematically deprived its grant applicants of certain basic legal rights that Congress intended them to have and which other granting agencies, such as the National Institutes of Health have made more of an effort to protect. Because of NSF’s circumvention of these rights, many scientists may have been denied grants for improper reasons—due to conflicts of interest, or because of blatantly erroneous information—without even realizing it. To rectify this situation, we recently submitted an extensive petition to NSF, asking it to make some modest but essential changes in its peer review system—changes that would undermine none of the fundamental principles on which a peer review system is based, but which would make it much fairer and more accountable to grant applicants. It is in the interest of every person who has ever submitted a grant application to NSF. or who may submit such an application in the future, to strongly support our effort. To comprehend how and why NSF has been circumventing the legal rights of its grant applicants, it is necessary to understand two important federal statutes—the Privacy Act and the Federal Advisory Committee Act. The Privacy Act was passed by Congress to ensure that persons would have basic rights with respect to records that federal agencies maintain about them. Most important, the act allows individuals to gain access to information about themselves; authorizes them to seek correction of records that are inaccurate or incomplete; and, third, directs agencies not to rely on inaccurate or incomplete records in the course of making any decisions about individuals. With the passage of the Privacy Act in 1974, NIH immediately recognized that the rights and remedies created by the act plainly applied to its peer review records. Consequently, it notified grant applicants that they have the right to inspect peer review records maintained about them and to ensure that such records are correct and complete. Not surprisingly, NIH has received thousands of Privacy Act requests over the years from scientists seeking. to review and amend their records. Indeed, because so many scientists were attempting to exercise these rights prior to final decisions on grant proposals, NIH decided to go one step further; in 1985. it instituted a system under which grant applicants could seek to correct false information in peer reviews immediately following the merit evaluation of a proposal and before any final decision was reached by the agency. NSF. unfortunately, took a far different approach to the Privacy Act: Instead of complying with the act, it immediately set out to find a way to bypass the law. The strategy NSF devised was to inform grant applicants that it did not maintain its peer review records in files indexed and retrievable according to names of individual applicants but, rather, according to the names of the universities or research institutions with which they were associated. NSF then relied on this self-created technicality in its filing system to contend that applicants had no Privacy Act rights whatsoever because peer review records were not actually being maintained under their own names. Thus, under NSF’s approach, if a reviewer wrongly accused a grant applicant of, for example, research fraud, drug abuse, or plagiarism, the NSF applicant—unlike his colleague at NIH—would have no right to review or correct that record simply because of the way in which NSF had chosen to file it. To make matters even worse, records disclosed to us under the Freedom of Information Act confirm the obvious—that, contrary to the impression conveyed by NSF to grant applicants, the foundation has always had an internal system for storing and retrieving peer review records according to the names of individual applicants. Indeed, any other conclusion would mean that NSF intentionally wasted huge amounts of time and money combing through vast institutional files whenever I wanted to recover review records relating to individual scientists. In effect, therefore, NSF has maintained a secret filing system for its peer review records, and it has engaged in this subterfuge for one reason and one reason alone—to deny applicants basic legal rights they would otherwise have with regard to peer records maintained about them. This effort has worked all too well—only a minimal number of NSF’s applicants have even attempted to invoke the provisions of the Privacy Act, and NSF’s peer review records have, for 14 years, almost entirely eluded the act’s protection. Our petition therefore asks NSF to acknowledge publicly what NIH recognized years ago: that all of its peer records are subject to the Privacy Act and that all applicants—including those who submitted applications in the past and about whom the agency continues to maintain information—may avail themselves of the act. If NSF were to acknowledge this, then other benefits to grant applicants would follow. For example, while NSF generally releases to applicants formal reviews, it does not provide them with informal communications from reviewers that may supplement or even contradict the formal statements. ‘thus, a scientist may now obtain a review that discusses the scientific merits of his application, yet never learn about a letter or a record of a phone conversation that contains other derogatory information, including allegations of a personal nature. Since the Privacy Act requires that all records maintained and disseminated about individuals must be accurate and complete, NSF’s disclosure of partial, misleading records would cease if the foundation agreed to apply the act to its peer review system. The Privacy Act is not the only federal statute that NSF has sought to evade. Congress passed the Federal Advisory Committee Act (FACA) in 1972 to establish minimum standards for all agencies that use advisory committees to assist them in carrying out their responsibilities. One of FACA’s most important requirements is that complete and accurate minutes must be maintained for all committee meetings. However, while NSF concedes that its peer review panels are advisory committees covered by FACA, it does not maintain minutes of their meetings. Rather, it only prepares, and disseminates to applicants, after-the-fact “summaries” of panel meetings. It is evident that such “summaries” may exclude crucial items that would be disclosed in minutes, and NSF.has conceded as much. In settling a lawsuit with Kalb in 1987 (The Scientist, Jan. 11, 1988, page 6), the foundation admitted that a peer review panel discussed a false rumor that Kalb was working for the CIA while conducting prehistory research in Ethiopia. NSF even acknowledged that this allegation influenced views of panelists, yet the sanitized “summary” of the panel discussion contained no mention of the CIA allegation. We are not proposing that NSF must record and disclose to the grant applicant everything that occurs at panel meetings—for instance, we agree that NSF may decline to link the names of specific reviewers with opinions expressed about particular proposals. But NSF should not continue to deprive applicants of contemporaneously maintained minutes that at least reflect all of the critical points raised and discussed by the panel. Our petition requests several auiditional reforms that would improve the fairness and effectiveness of the peer review system. Thus, we propose that NSF inform applicants of serious nonscientific, personal accusations .that have been introduced into the peer review process, and give applicants an opportunity to respond to these allegations prior to a final decision on the proposal. Under the current scheme, various kinds of damaging allegations may be introduced into the system, and the applicant may never even learn about the allegation, let alone be given a chance to rebut it. We also urge NSF to take greater steps to safeguard against conflicts of interests on the part of reviewers, particularly with respect to situations in which the reviewer is pursuing research that directly overlaps that being proposed. While NSF has implicitly recognized that this sort of “research” conflict should be prevented, it has adopted virtually no procedures for doing so. We suggest that applicants themselves play more of a role in pinpointing such conflicts, since applicants—not NSF program officers—are ordinarily in the best position to identify colleagues with whom they may have a research or personal conflict. The difficulty, of course, comes in devising such a system that does not undermine reviewer confidentiality. To solve this problem, applicants should be permitted to review cumulative lists of all reviewers that each NSF program intends to use during a particular granting period. Applicants could then state their objections to any particular reviewer, but they would not know which reviewers were ultimately selected toassess their proposals. Finally, our petition suggests improvements in NSF’s process for appealing denials of grants—a process that, to put it charitably, has been of little practical value to grant applicants. Despite widespread dissatisfaction with the peer review system. and a general perception that decisions are frequently based on inappropriate factors, there are only a handful of appeals each year, and only a small fraction of these are successful. A meaningful appeals process must have two key ingredients—persons contemplating appealing must be told the grounds on which they may do so, and, just as important, they must be given the raw materials necessary to pursue an appeal, that is, the complete record on which the adverse decision was based. NSF’s appeals system is completely lacking in both of these areas. The chances of NSF adopting any of the reforms we have proposed are directly related to the amount of concern and support that is expressed by those who actually use the peer review system. Grant applicants can urge NSF to better protect their rights, or they can sit by and watch NSF continue to stray from the dictates of federal law and fair play. Like the weather, everyone complains about the peer review system, but no one does anything about it. This is an opportunity to do something about it. Jon Kalb is a geologist and research associate at the Univeisity of Texas, Austin, and Eric Glitenstein is an attorney with the Public Citizen Litigation Group in Washington D.C.

Rejected Applicant's Petition Says Agency Kept 'Secret' Filing System

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