Published online 28 November 2007 | Nature 450, 590 (2007) | doi:10.1038/450590a
Corrected online: 5 December 2007

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Loopholes in oversight rules revealed

US energy department criticized over procedure for misconduct investigations.

Government officials oversaw a misconduct investigation at Oak Ridge National Laboratory.Government officials oversaw a misconduct investigation at Oak Ridge National Laboratory.OAK RIDGE NATL LAB.

Documents released under the Freedom of Information Act raise questions about how the US Department of Energy (DOE) oversees investigations of misconduct at its science facilities. During such oversight, government officials do not always retain records of the investigations, it has emerged.

DOE officials overseeing an investigation into alleged misconduct at Oak Ridge National Laboratory in Tennessee approved the investigatory panel's findings at a meeting that government officials left without keeping copies of key investigative records. This is according to a 13 November ruling by attorneys at the DOE — issued in response to a Freedom of Information Act request by this reporter.

The story begins in March 2006, when a reviewer for the journal Nature Physics alleged that a manuscript submitted by Oak Ridge researchers in the group headed by electron microscopist Stephen Pennycook contained inappropriately manipulated data. An investigation panel convened by the lab's deputy director for science and technology, James Roberto, exonerated Pennycook and others of wrongdoing in July 2006, but other scientists expressed doubts (see Nature 444, 129; 2006). In January this year, the DOE said that Oak Ridge, which is run by the not-for-profit company UT-Battelle under a 5-year, US$6.3-billion contract, had reopened the investigation. “Once again, the committee concluded there was no evidence of misconduct,” an Oak Ridge spokesman told Nature.

According to the November ruling, DOE officials approved this first finding at a meeting last year with lab officials where they were shown copies of a panel's investigation report in binders marked “do not duplicate”, and reviewed the process that the panel used to arrive at its finding of “no misconduct”. The lab officials then took the binders back, the ruling says. It adds that although the DOE officials felt that it was “very important” to confirm the panel was objective and composed of people who did not work at Oak Ridge, they apparently did not keep a record of who those investigators were. Last week, Oak Ridge named Paul Peercy of the University of Wisconsin-Madison and David Williams of the University of Alabama in Huntsville, as two panel members.

“Copies of the report were returned as is normal practice with confidential documents,” says Oak Ridge's spokesman, Mike Bradley. “Department of Energy officials were not at any time restricted from access to the report,” he adds.

The freedom-of-information ruling cites a standard clause in the contract between the DOE and UT-Battelle as evidence that the company “clearly intended to retain control over the report of investigation”. That clause says that records relating to investigations “conducted under an expectation of confidentiality” will be considered the contractor's property. In 2005, Raymond Orbach, director of the DOE Office of Science widened the clause to cover misconduct reports from all US national labs run by the DOE.

In the Oak Ridge case, the DOE did later receive a copy of the investigation report, which the recent ruling orders Orbach's office to consider for public release — overruling his deputy, Patricia Dehmer, who had refused to do so. But Oak Ridge says that it was sent not for oversight but “for informational purposes only”.

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“Can a government agency fulfil its oversight responsibilities with this degree of access?” asks C. K. Gunsalus, an attorney and misconduct expert at the University of Illinois at Urbana-Champaign. She says that other science-funding agencies employ oversight experts who routinely receive and retain not only investigation reports, but the data at issue and the names of people involved, and analyse these in detail — a process that for a complex case might well take longer than one meeting.

Bioethicist Arthur Caplan of the University of Pennsylviania, Philadelphia, says he can't understand why the DOE introduced a rule relinquishing control of investigation reports. “Why would they give up supervisory powers?” he asks.

Officials in Orbach's office plan to meet this week to discuss the matter. 

Corrected:

This story refers to a ruling issued by US Department of Energy attorneys in response to a Freedom of Information Act request. We would like to make it clear that the documents that were the subject of that request have not been released. This Clarification was published in _Nature_ *450,* "775":http://www.nature.com/uidfinder/10.10.38/450g (2007).
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