NSF Wins Appeal to Maintain Confidentiality of its Proposal Reviewers
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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 well recognized, 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."
The National Science Foundation (NSF) is an independent federal agency that supports fundamental research and education across all fields of science and engineering. In fiscal year (FY) 2017, its budget is $7.5 billion. NSF funds reach all 50 states through grants to nearly 2,000 colleges, universities and other institutions. Each year, NSF receives more than 48,000 competitive proposals for funding and makes about 12,000 new funding awards.
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