Researcher Flouts NIH Tradition By Trying To Sit In On Review Of His Grant Proposal

An epidemiologist's move to attend a closed meeting spurs debate over freedom of information versus the right to privacy WASHINGTON--No grant applicant had ever tried to breach the sanctity of an advisory council at the National Institutes of Health--until last summer, when University of Texas epidemiologist Darwin Labarthe knocked on the door. Notwithstanding the closed-door policy of the outside panel that advises the National Heart, Lung and Blood Institute, Labarthe told the NHLBI director he intended to hear for himself what this august group of scientific and community leaders thought about his research project, which they had already turned down once. And, Labarthe said, he had the law on his side. It was the first time in the memory of anyone at the heart institute, or the NIH general counsel's office, that a scientist had attempted to attend the closed segment of one of the council's quarterly meetings. The major portion of these meetings, when general policy issues are being discussed, is open to the public. Although Labarthe ended up not attending the session, his request raised questions in the minds of institute officials about their ability to protect the privacy of the up to 300 other grant applicants whose proposals appear on the council table at each meeting. Council members wondered if they could still carry out their duty to recommend funds for specific projects, and to reject others, if forced to act under the critical eye of an interested observer. "You can't have these kinds of meetings open because it inhibits analysis," says NHLBI council member Samuel Rapaport, a hematologist at the University of California, San Diego. "It's dreadful that people who understand science and the importance of peer review would resort to lawyers when it comes to their own grant. If scientists stop believing in [the importance of the advisory council], they are going to destroy a very effective peer review system." But Robert Charrow, Labarthe's attorney, says that under certain circumstances any investigator has the right to attend a council meeting when his or her grant application is being discussed. "I have heard no legal justification on the part of NIH for closing the meeting," says Charrow, a former principal deputy general counsel for the Department of Health and Human Services, NIH's parent agency. "I think a number of investigators would be interested to know how NIH policy is being applied to their grant application. It's only a matter of time before someone takes this to court." Labarthe, who didn't respond to repeated requests for an interview, never made it all the way to court. His odyssey began last summer, when he learned that the NHLBI advisory council had decided at its May meeting not to fund his $5 million, five-year proposal to study the incidence of cardiovascular disease in children. Labarthe and the University of Texas Health Sciences Center in Houston, where he is director of the epidemiology center, immediately hired Charrow to represent him in his quest for a seat at the council's next meeting. The council did offer the epidemiologist one ray of hope at its May meeting. If he reworked his study proposal to include young blacks as well as whites in his comparison of U.S. and Japanese students, institute officials told him, the council would reconsider it at its September meeting. Labarthe made the changes in his study design. And he told institute officials that he would be attending the meeting. Outraged, the officials responded unequivocally to Labarthe's request. "My immediate reaction was no, it is closed and you cannot come," says Claude Lenfant, director of NHLBI. At that point Charrow presented Lenfant and NIH's lawyer, Robert Lanman, with his interpretation of the 1976 federal Government and the Sunshine Act. According to the law, an advisory council meeting may be closed to protect the personal privacy and proprietary information of the scientist whose research is being discussed. But once Labarthe, or any scientist petitioning NIH for a grant, gives up his rights to privacy, says Charrow, the institute has no grounds to bar him from listening while the council discusses his grant. "Our counsel, Bob Lanman, didn't agree with the legal interpretation offered by Charrow," says Lenfant. "We told them to take it to court." But that never happened. When the advisory council met again to review Labarthe's proposal, the scientist was not present. The news from the meeting, however, was good: Labarthe would be granted the money to do his research. While the case itself, says Charrow, "was resolved," the fate of other such requests is far from clear. The NHLBI funds only about one-quarter of the grant applications that NIH peer review panels believe are worthy of support. As funding becomes even tighter, many experts say, other frustrated and worried scientists are going to want to know what goes on inside the powerful advisory council. Someone, they predict, will soon put Charrow's arguments to the test. "Once a scientist waives his rights to privacy and protection of proprietary information, you have a good case for opening a meeting to the public," says Paul Kamenar, a lawyer at the conservative Washington Legal Foundation. "I think it would be successful in court." But NIH officials say that everyone would suffer if council meetings were opened to the public. Council members would feel inhibited for fear that what they might say could become public, they argue. Nor would members be able to protect the privacy of other applicants whose proposals were being reviewed at the same meeting. "During any council discussion there are many applications that are being discussed that should be held private even if one principal investigator waives his rights," says John Diggs, NIH deputy director for extramural research. "Any grant application is in competition with other grants, so it is never discussed in a vacuum, but in the context of others." Some lawyers believe the right to privacy of other applicants and of the council members themselves would be enough to convince a court to keep the meetings closed. For now, says an NIH official familiar with the case, the question is moot. "It's no longer a significant question," the official says, "because it is not likely to happen again." But lawyers and scientists are waiting to see if he's right.

Researcher Flouts NIH Tradition By Trying To Sit In On Review Of His Grant Proposal

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