UW-Madison wants to protect research by limiting open records law

The University of Wisconsin-Madison is seeking to limit the state’s open records law — potentially through language slipped into the state budget — to keep from the public information about research until it is published or patented.

No specific incidents of harmful disclosures were cited in language for a possible motion that is being passed among Republican lawmakers and was obtained by the Journal Sentinel.

University officials have been seeking to convince GOP lawmakers to advance the legislation either as a separate bill or by inserting it into the state budget when the UW System’s part of the bill comes before the Legislature’s budget committee Thursday.

In an interview Thursday, Assembly Speaker Robin Vos (R-Rochester) made clear he was at least open to the idea, though he didn’t know all the details on it. He didn’t say if the provision would be included in a larger and still unreleased motion on the UW System that is expected to be voted on by Joint Finance Committee members later in the day as it considers funding for public universities and colleges in the 2013-’15 state budget.

Vos said he saw a need to make changes to the open records law to ensure a researcher’s work wouldn’t have to be released publicly before the researcher was ready to publish it.

“In general, if it’s a public institution things should be public, but I don’t want to hurt (research),” Vos said.

Joint Finance Committee co-chairman Rep. John Nygren (R-Marinette), said that he didn’t believe the issue would be included in the UW motion coming before his panel Thursday, but allowed that he wasn’t sure.

The proposed change was prompted by a change in U.S. patent law earlier this year, moving to a first-to-file system. If a competitor uses the open records law to gain premature access to patentable intellectual property, the competitor could race to the patent office to seek patent protection for the ideas of UW researchers, UW officials say.

“Less than 10% of research grants are funded, so you want to make sure your competitors don’t know what you’re doing before it’s published,” said Bill Barker, director of the office of industrial partnerships at UW-Madison.

“Open records laws are adamantly transparent, but there’s nothing specific in them for universities, which are a unique enterprise,” Barker added. “It’s like trying to fit a round peg in a square hole. After research has been published, you would have access to anything.”

The university never accepts a contract that seeks to have results held as trade secrets or seeks authority to redact anything in the research, Barker said. “People see us as a completely objective source of information,” he said.

The university isn’t “trying to hide anything from anybody,” Barker said. “You’ve got to be as competitive as the world is.”

The UW also noted it is spending over $100,000 a year “dealing with animal rights groups’ records requests,” but that it can only recover a fraction of that cost because most of it is associated with reviewing and redacting information from records.

A research exemption in the state’s open records law would “eliminate the incredible disruption to ongoing research,” according to the UW’s request for the provision.

Rep. Jon Richards, a Milwaukee Democrat on Joint Finance, said Thursday morning that he hadn’t heard about the UW’s request for a research exemption to the open records law.

Richards said he was surprised that UW officials would want to slip the exemption into the budget at a time when they face so many other questions from lawmakers about their management of the UW System.

At least one Republican is opposed to the idea. Sen. Glenn Grothman of West Bend, is a vocal critic of both the university and of including policy items lacking a clear financial impact in the state budget, where the items can pass without a full review by the public and legislators.

Grothman said he hadn’t seen the possible motion language but had heard enough to know where he stood on it.

“I’m not for it,” Grothman said as he ducked into a meeting.

Tom Evenson, a spokesman for Gov. Scott Walker, declined to comment.

“This exemption is critical to the University’s ability to serve as an economic engine for the state of Wisconsin,” the UW’s proposed language for a motion says.

“In fields such as engineering, computer sciences, biomedical sciences, chemistry, and others, inventors at the University create valuable intellectual property that serves as the basis for technology transfer initiatives intended to foster job creation and strengthen our role as an international leader in innovation.”

Premature disclosure of information related to ongoing research “can lead to misappropriation of cutting edge ideas, jeopardize patent applications, and ultimately hinder technology transfer initiatives by devaluing the technology created at the University,” the language says.

In the United States, inventors have one year from publication of an idea to seek a patent; if patentable intellectual property is disclosed in response to a public records request more than one year prior to an application, it can render the invention unpatentable and a poor candidate for licensing and commercial use, the university memo said.

The memo says researchers in medical fields are at a competitive disadvantage if research contracts, protocols and investigational brochures are public documents, “in that drug and device manufacturers spend billions of dollars bringing a new drug or device to market.”

“If they have fear that their confidential data will be disclosed to one of their competitors before they have the ability to patent their drug/device to bring it to market, they will simply contract with a private entity,” the memo says.

It is unclear how the proposed amendment would apply to funding received by UW-Madison doctors and the UW-Madison medical school, but there have been numerous instances over the years of financial links between the doctors and the school and drug and medical device companies.

Most of the cases were revealed, at least partly, as the result of Open Records requests.

Among them:

■ In 2009, a Journal Sentinel investigation found that UW had received $1.5 million from Wyeth Pharmaceuticals for its role in a medical education program for doctors that promoted dangerous hormone therapy drugs for women.

The online program was criticized by independent doctors who said it downplayed risks of the drugs and overstated the benefits. A separate story found that some of the articles produced for the program actually had been ghostwritten by professional writers paid by the drug company.

The materials were taken down from the web the day after Journal Sentinel reporters began asking UW officials about program.

■ That same year, a Journal Sentinel story found that Solvay Pharmaceuticals paid $1 million to fund UW-sponsored doctor education courses in 2005 through 2007 that promoted questionable testosterone therapy for men. The courses that were designed to reach more than 50,000 doctors. UW directly received $115,000.

Solvay made the testosterone product, Androgel, which now is sold by AbbVie, formerly Abbott.

■ A 2011 Journal Sentinel story found that over a decade the UW Pain & Policy Studies Group had received more than $2.5 million from companies that make narcotic painkillers. The payments were made while the UW Pain group pushed an agenda to help liberalize use of the drugs, though such uses were not supported by solid science.

Researchers with the program personally received opioid company money as well.

After the story ran, the UW Pain group said it had decided to stop taking money from the drug industry.

■ A 2012 Journal Sentinel story found that since 1996 UW orthopedic surgeon and department chairman Thomas Zdeblick had received more than $34 million in royalties and consulting payments from the device company Medtronic.

Zdeblick was among a group of doctors who co-authored favorable medical journal articles about Medtronic’s spine surgery product, Infuse.

The payments were revealed as part of a U.S. Senate Committee on Finance investigation as well as records made available in later years by UW and Medtronic.

■ Other Journal Sentinel stories have revealed that over the years dozens of UW doctors have received five- and six-figure annual payments for consulting and speaking for drug and devices companies. UW since has banned its doctors from doing promotional speaking for drug companies.

UW-Madison’s treatment of animals used for medical research has been targeted for years by PETA, or People for the Ethical Treatment of Animals.

The most recent protest disrupted a UW System Board of Regents meeting in February, when James Cromwell, the Oscar-nominated actor who starred in “L.A. Confidential” and “Babe,” and a PETA spokesman were arrested after they burst into the meeting room.

They carried large, graphic signs showing a cat named Double Trouble with metal implants in its head at a UW-Madison lab, and shouted that the research was torture, not science. Two campus police officers dragged the protesters from the room, and the meeting resumed.

PETA said in a release that 30 cats a year at UW-Madison are starved, deafened and decapitated for brain research that hasn’t accomplished its goals of improving human hearing.

Research using both animal and human subjects is “very highly regulated,” according to the UW memo.

UW-Madison wants to protect research by limiting open records law.