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Researchers are increasingly being forced to sign government non-disclosure agreements, so they can’t talk about their scientific results in the media. But many contracts are illegal
A team of scientists from the Danish National Centre for Social Research SFI were to evaluate the Danish school reform in 2014. They were forced to sign an ‘unconditional’ non-disclosure clause by the Ministry of Education. The case drew media attention in 2016.
In the so-called ’manure-gate’ case, scientists from Aarhus University (AU) were forced into confidentiality with the Ministry of Agriculture and Environment so they could not publish results or comment the case until two months after their memo was delivered to the ministry.
“I did not know that these clauses were so so prevalent when I started . You look at the content of some of them, and it is as if you are in a country like East Germany” – Heine Andersen, professor emeritus
Over the last couple of years multiple non-disclosure clause cases by different ministries, where scientists have been forced to sign, have been revealed.
But the clauses have been used for years, and are a serious problem. For the researchers, whose freedom of speech and research has been limited, but also for democracy, because knowledge is being monopolized by the state. This is according to Heine Andersen, a professor emeritus at the Department of Sociology, University of Copenhagen. He is writing a report on the freedom of research.
“I did not know that these clauses were so so prevalent when I started. You look at the content of some of them, and it is as if you are in a country like East Germany. And this is scary, and it reflects the failure of management and the unhealthy culture at universities, where so far nobody has questioned why they all have these clauses.”
According to Heine Andersen, Danish universities have seen a new culture of secrecy appear after the 2003 University Act, where university management teams were centralized and no longer to be held accountable and explain themselves to any democratically elected assembly.
“It is something that has been going on for many years. The University Act has led to a more hierarchical management structure, and this has had negative consequences on transparency and on people’s wish to express criticism.«
Heine Andersen’s research is supported by a PhD dissertation from Roskilde University based on responses from 1,700 highly educated members of the Danish Association of Masters and PhDs, DM, including researchers. 20 per cent said they had experienced inadequate workplace conditions that the public should be made aware of. In the dissertation, which was published last February, several of those involved said they showed restraint in expressing themselves about their work.
“There is no doubt that the freedom of research is under pressure. Four years ago we did not see the kind of contracts we see now. And the case is relevant for both the freedom of expression and the freedom of research,” Camilla Gregersen, chairman of Danish Association of Masters and PhDs, DM”
DM has also focussed on the problem, as its members have got into difficulties from non-disclosure clauses.
If you ask the chairman of DM Camilla Gregersen, the ministries’ standard contracts are in breach of the arm’s length principle and the Ministry of Research’s own guidelines for research-based services.
“In many of these contracts, the researchers have their right to publish results taken away from them. They can only make results public at a certain time, typically when a political agreement has been made. But on the Ministry of Research’s website in the ministerial guidelines on service to authorities, it states that it is the universities that have the right to publish. It states explicitly that universities have the right and duty to publish research results, also when the research is an activity carried out for an authority,” says Camilla Gregersen.
“There is no doubt that the freedom of research is under pressure. Four years ago we did not see the kind of contracts we see now. And the case is relevant for both the freedom of expression and the freedom of research, in the sense of the right to publish research results,” she says.
She points to another problem with research under non-disclosure agreements.
“If you cannot discuss what your research is about with anyone, then you risk having research that cannot be verified. It is decisive in quality research that researchers can be challenged by other researchers.”
Heine Andersen has not carried out a comprehensive survey of the ministries, but he has found the routine use of non-disclosure contracts in at least four out of 18 ministries and six of the country’s universities. He has seen instances of both ministries and private companies supporting research financially, but with researchers forced to sign a non-disclosure clause. He believes that the clauses are at odds with the University Law and the Danish laws on public administration.
“The contracts used by the Ministry of Food and Environment in connection with ’manure-gate’ and by the Ministry of Education in SFI’s evaluation of schools were clearly illegal,” law professor Sten Schamburg-Müller
The Ministry for Food and Environment recognised that they were in breach of the law this Spring, and have said that they would change the standard contracts. The Ministry of Education has done the same. But nothing has happened yet, according to Heine Andersen.
“You can’t call on the researchers to protest, as they are scared of losing their jobs. It should be the management of the universities that protests. It is they that sign off, or approve that research directors sign off on the research. But it states in the University Law, paragraph 2, that universities should safeguard the freedom of research.”
He is supported by Camilla Gregersen:
”We need the ministries to work out a standard contract that is in accordance with their own guidelines. A contract that ensures open political processes and thereby also greater transparency and democratic scrutiny. This said, it is my clear impression that university managements will defend the freedom of research, and I expect also close co-operation on this in the future.”
Professor in law at the University of Southern Denmark Sten Schamburg-Müller specialises in the freedom of expression, and has seen several non-disclosure agreements over the last couple of years. He believes that some of them are in direct breach of the laws on public administration.
”In the law it states that you should maintain professional secrecy on, say, information on individuals, the defence of the realm, foreign policy interests, and other obvious considerations. But in public administration, researchers cannot have further secrecy imposed upon them, up and above the secrecy that is already present in the law. Ministries may not extend professional secrecy to safeguard political interests. The contracts used by the Ministry of Food and Environment in connection with ’manure-gate’ and by the Ministry of Education in SFI’s evaluation of schools were clearly illegal”.