NSF PR 96-27 - May 24, 1996
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NSF Wins Appeal to Maintain Confidentiality of its
Proposal Reviewers
The National Science Foundation (NSF) has won a significant
victory in a unanimous decision by the D.C. Circuit
Court of Appeals allowing the agency to continue its
policy of keeping confidential the names of individuals
who review specific proposals for grants and other
awards.
Applicants routinely receive the verbatim evaluations
of their proposals as part of NSF's extensive peer
review process, but not the identities of the reviewers.
NSF's policy was upheld initially by the District
Court, and was affirmed on appeal in Henke vs. Department
of Commerce and the National Science Foundation.
"We are pleased the Court has approved NSF's long
standing practice of confidential peer review," D.
Matthew Powell, NSF Assistant General Counsel, said.
"The importance of reviewer confidentiality in obtaining
the candid evaluations of thousands of voluntary reviewers
is wellrecognized, and now endorsed by the courts."
The court decision focused on two issues. NSF relied
on a Privacy Act exemption that protects the identity
of confidential sources in evaluating the qualifications
of applicants for "Federal contracts". The appellate
court upheld NSF's position that NSF grant agreements
are Federal contracts for purposes of the exemption.
The Court also considered whether NSF gave an express
promise of confidentiality to reviewers. That requirement
of the exemption is not satisfied, said the plaintiffs,
unless the agency can demonstrate that individual
reviewers requested or desired confidentiality. Again,
the appellate court rejected plaintiffs' argument,
and concluded that NSF gave the required express promise.
NSF uses an extensive system of external peer review
as part of its merit review process for evaluating
proposals submitted for funding. Applicants receive
the entire contents of all evaluations except for
reviewer identities. Reviewers are informed that verbatim
copies of their evaluations will be sent to the applicants
without divulging reviewer names and affiliations.
This confidentiality promotes candor in evaluations
and enables applicants to have the benefit of direct
and constructive feedback, while protecting reviewers
from potential lobbying pressure, harassment or retaliation.
Powell noted that the decision is a "win for the continued
quality and candor of peer review that has contributed
much to U.S. leadership in fundamental science and
engineering research."
A copy of the decision, Henke vs. Department of Commerce
and National Science Foundation, No. 95- 5181, slip
op. (May 17, 1996) may be viewed on the World Wide
Web at http://www.ll.georgetown.edu/Fed Ct/cadc.html
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