Alleged scientific fraud: lawsuit reveals DOE failures

By Chris Mooney | July 7, 2011 12:09 pm

This is a guest post by Eugenie Samuel Reich, a contributing correspondent for Nature.

Last time I posted on The Intersection, a couple of commenters were curious about a disclosure I made about having brought a Freedom of Information Act (FOIA) lawsuit against the US Department of Energy (DOE), to obtain a report into alleged scientific fraud at Oak Ridge National Lab (ORNL).

So I thought that Intersection readers might be interested in my article, out today in Nature, reporting on the lawsuit’s progress.

The fraud allegations in the case date back to 2006. That year, a group of researchers led by Stephen Pennycook were accused of fabricating data; which they have strongly denied. Pennycook’s research involves developing cutting-edge techniques for imaging materials using an electron microscope, which can solve problems in nanotechnology, energy research, and condensed matter physics. His group receives about $2 million per year from DOE.

The data that prompted concerns included one example, discussed in this 2006 Boston Globe article, where the group had mirrored and spliced datasets together to represent a scan of a sample that had allegedly never been studied for real. In another example, the group had replaced some, but not all, of the electron energy loss spectra taken from a sample with allegedly completely different ones when a reviewer suggested the scientific conclusion that atomic-scale resolution had been achieved were not fully supported by the originals.

Following federal policy on research misconduct, ORNL held an investigation. The investigation panel of three scientists exonerated the group of misconduct, finding they were guilty of no more than errors of judgment and careless errors. In order to understand how this conclusion was reached, I sought the investigation report under FOIA, and went through several rounds at the DOE appeals process (with at one point, the Office of Hearings and Appeals ruling in my favor, only for the Office of Science, which had the report, to dispute its conclusions. In 2008, a summary statement by the investigators was released, but I continued to pursue the original report. By 2009, I had received a final answer that DOE wouldn’t release it, and so sued the agency in district court in Boston, where I am based.

In fighting the case, the government has gone to great lengths to argue that the investigation report it received is not a government record subject to FOIA. Its rationale for this is that ORNL is run by a private contractor, UT Battelle, which owns the report, and that DOE officials did not read or rely upon it when they approved the investigation. The court filings include sworn declarations from officials involved in approving the investigation saying they didn’t read the final investigation report, and later gave it back to UT Battelle. They say they approved the exoneration through phonecalls and meetings with an ORNL manager. They imply this is typical for science oversight at the DOE national labs and consistent with federal policy that requires the investigation report and evidentiary record to be documented by the funding agency for oversight purposes.

An editorial in Nature accompanying my article characterizes the problem this way:

Important decisions were taken informally by a small group of officials and an adviser who apparently shared a common interest: to see the matter quietly resolved. The procedure ought to be more formal, better documented and even adversarial, with the institutional managers required to satisfy officials whom they do not know and who have no stake in the case outcome. This is closer to the more careful oversight of alleged misconduct by both the Office of Research Integrity at the Department of Health and Human Services (DHHS) and the inspector-general of the National Science Foundation.

Not reading the report apparently had an advantage for DOE: the judge ruled in March that the record was not subject to FOIA in part because the government had never read it. I’ve filed a motion to reconsider, and the case is still pending.

CATEGORIZED UNDER: Guest Posts

Comments (10)

  1. Johnny

    Mr. Reich,

    Thank you for this guest post.

    Do you feel that your repeated requests via FOIA are “harassment” to the scientists involved?

    The reason I ask is that the scientific community has recently published a series of articles claiming that using FOIA requests against scientists, like in Climate Science, is in fact a burden and even “harassment” of the scientists involved.

    http://green.blogs.nytimes.com/2011/06/29/group-condemns-harassment-of-climate-scientists/

    Why is it harassment to FOIA a climate scientist, but not harassment when you do it??

  2. Cathy

    I don’t think it’s harassment when the motivations behind the request are apolitical in nature. In this case, it was the peer review process itself that prompted the concerns and the subsequent investigation. Peer review is a critical component of the scientific process, because different viewpoints can provide different insights on data, but nobody really likes having their work second-guessed. Hence the feeling of being harassed if someone points out a fundamental flaw in your methodology or your analysis.

  3. Eugenie Samuel Reich

    @1 This is an extremely important and interesting question particularly because Ray Orbach, who is quoted in the article you link to calling some types of FOIA request “harrassment”, is the official who denied my request at DOE. But I’d note that my FOIA requests haven’t been repeated, and haven’t been directed to the scientists but to the officials who oversaw an investigation into their work that took place under federal policy not in the course of normal scientific research; and that I’ve made essentially one, very administratively easy to handle request for an investigation report, and then pursued that vigorously. I haven’t made repeated requests for raw data at this time. Indeed even Ray Orbach, who I interviewed , he’s quoted in my article, hasn’t termed my request harrassment.

  4. Chris

    @ Johnny.
    I think Reich is a scientist who understands the material, compared to the climate deniers who are politically biased and have no understanding of the science behind it.

  5. Doug

    @ Johnny

    I’m just taking a guess here, but I think it’s because this petition is for a report on an actual incident of actual academic integrity where state funds were used and the review was done by only intereted parties and not a third party (like the climate-gate thing), and that this is not just the attempted fulfillment of the wet dreams of a myopic Attorney General.

  6. Johnny

    Chris,

    What if its a legitimate scientists who is also a climate denier, then do you support the FOIA requests? http://www.theregister.co.uk/2011/06/28/ico_climategate_release_this_rubbish/

    A leading Oxford physicist, Professor Jonathan Jones, made the successful request for CRUTEM data, which the ICO has now published. The UEA of Climategate fame lost all of their objections, and were forced to turn over the information.

    How can you justify the hypocrisy of having one set of FOIA rules for Climate Deniers, and another FOIA rules for everyone else? The law applies equally to scientist and non-scientists alike.

    Your position appears highly biased. You support FOIA when the target is the DOE, but you don’t support FOIA when the target is Climate Scientists.

    Please explain your justification for this bias.

  7. Johnny

    @Doug #5

    You said:
    “…I think it’s because this petition is for a report on an actual incident of actual academic integrity where state funds were used and the review was done by only intereted parties and not a third party (like the climate-gate thing)…”

    You are referring to:
    “…In another example, the group had replaced some, but not all, of the electron energy loss spectra taken from a sample with allegedly completely different ones when a reviewer suggested the scientific conclusion that atomic-scale resolution had been achieved were not fully supported by the originals.”

    This is exactly what the Climate Scientists did. Climate Scientists replaced some, but not all, of the historic proxy data of temperature records, with modern temperature records. They did this arbitrarily, based on whichever record gave the data they wanted for that point in the graph.

    More recently its also been discovered that they deleted not only the modern end of the proxy data, but also the first first 100 years of the same data set, because it also “disagreed” with their intended message.

    This is a double standard.

  8. Chris Mooney

    @6 and @7
    you’ve made your point. this thread is about eugenie reich’s story, not climate change, from here on out.

  9. Johnny

    @ Chris Mooney #8

    Thanks Chris. Lets talk about Eugenie’s story. Lets try to do it without any context whatsoever, and without comparing it to other extremely similar allegations of scientific misconduct, that were treated extremely differently by you at this blog.

    The Accuser:
    Who made the allegations of fraud? That’s noticeably missing from this article. Reading through the links, it says:

    “The allegation, made by a reviewer for Nature Physics, was confidential.”

    So this is a anonymous allegation. This leaves us no way to evaluate the motives of the accuser. We have no context in which to understand this accusation. Is it from a scientists with a competing theory or technology? Is it from a scientist who lost out on funding?

    Funding:
    …John Spence, a physics professor at Arizona State University with a joint appointment at the Energy Department’s Lawrence Berkeley National Laboratory, said they (the allegations) are “very troubling. . . . This is a field that involves the use of very expensive, highly centralized facilities, and Pennycook’s group is the best funded.”

    Violating Peer Review Procedures:
    Word of it circulated unofficially among scientists, however, and several have now raised broader concerns about the reliability of the work…

    What happened to the sanctity of the peer-review process? Since when is it ok in the scientific community to group-forward emails with powerpoints attached making back-room accusations? Is this the way science operates?

    Why did the peer-review process get thrown out the window?

    Officially:
    Karl Ziemelis, Nature’s physical sciences editor, said the journal is unable to publicly discuss submitted manuscripts, even ones with serious problems, because they are confidential.

    Unofficially:
    The comments were provided to the Globe on the condition the reviewer not be identified.

    Finally from the Article:
    “All the mistakes uncovered in our publications are editorial in nature, regrettable, and without impact on the scientific conclusions,” he wrote in an e-mail.

    Where have I heard that one before, Chris? :)

  10. Johnny

    @Eugenie

    I hope you get your report. I’d like to advise you how a similar situation was resolved, and hopefully Chris won’t delete my post. Here’s how other people got their information via FOIA, and maybe it will work for you too.

    There were scientists in Britain, in a undisclosed field, who were accused of misconduct. The entity employing the accused scientists, employed an “independent commission” to investigate. That commission is now refusing FOIA requests for its documents, on the grounds that it is “independent” and not subject to FOIA requests.

    The scientists seeking the information, were able to prove that because the entity paid the independent commission directly, the FOIA laws carried over to that commissions work, as it was a paid-for-product owned by entity itself.

    Good luck with your request. Data should never be hidden.

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About Chris Mooney

Chris is a science and political journalist and commentator and the author of three books, including the New York Times bestselling The Republican War on Science--dubbed "a landmark in contemporary political reporting" by Salon.com and a "well-researched, closely argued and amply referenced indictment of the right wing's assault on science and scientists" by Scientific American--Storm World, and Unscientific America: How Scientific Illiteracy Threatens Our Future, co-authored by Sheril Kirshenbaum. They also write "The Intersection" blog together for Discover blogs. For a longer bio and contact information, see here.

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