November 16, 2017

Elsevier Motion to Block Public-Records Request of Washington State University Denied

By Josh Hadro

ARL: ruling affirms resolution against agreements with confidentiality clauses

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Academic Newswire
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  • County judge blocks motion; Elsevier won’t appeal
  • In this case, no right to "confidentiality of proprietary pricing methods"
  • ARL reaffirms opposition to confidentiality clauses

Shortly after the Association of Research Libraries (ARL) warned its members not to enter into confidential agreements with vendors, a court has denied a request from Elsevier to keep contract terms with Washington State University (WSU) out of the public record.

According to Paul Courant, university librarian and dean of libraries at the University of Michigan, this is the first legal action to result from dozens of public-records requests sent to major universities. Courant, Ted Bergstrom, and Preston McAfee have submitted requests for the terms of various institutions’ "Big Deal" contracts with publishers to undertake an analysis of those agreements.

Confidentiality sought
On June 9, Elsevier filed a motion to prevent the release of the information hoping to "preserve the confidentiality of its proprietary pricing methods and formulae." A judge for the Whitman County Superior Court, however, ruled on June 19 against the motion and in favor of full disclosure.

Elsevier will not appeal the decision. "While we believe we are defending a sound point of principle," David Ruth, Elsevier senior VP for global communications, told the LJ Academic Newswire, "we didn’t think it would be productive to press the matter further under these particular legal circumstances." (Disclosure: this publication and Elsevier share the same parent company.)

Case against confidentiality
The episode has served as an opportunity for ARL to reiterate its position. "This case is a telling example of why we should not be signing these non-disclosure agreements," said Tom Leonard, ARL president and university librarian at the University of California, Berkeley.

Elsevier, however, disagrees. Speaking about ARL’s statement, Ruth said: "We think it’s in everyone’s interest to be able to keep some elements of these agreements confidential, so we have more flexibility to customize an agreement to the unique circumstances of the customer. That’s why we might ask for confidentiality or request that some information be redacted if agreements are released to the public."

Opening public records
The WSU records, typical of those generated at institutions funded by public monies, are subject to public-records requests. However, many libraries still find themselves entering into contracts with confidentiality clauses that are only later trumped by open records requests and freedom of information inquiries as mandated by state and federal law, Courant explained.

Still, access does not follow necessarily from a records request, as indicated by the motion in this case. "Just because one is subject to an open records act, doesn’t mean all the records are open," Courant said.

What’s next?
The unredacted version of the contracts have not yet been released, pending a signed order from the judge, according to WSU. 

Given that a number of requests have been submitted by Courant, Bergstrom, and McAfee to institutions in other states, more challenges may yet surface. "We’re raising the same objections in those states as well through whatever channel is appropriate to that state," said Ruth. "We haven’t filed for any other injunctions at this point, but haven’t ruled that out as a possibility either."

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