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Last Updated

15 Sep 2003

Source: Sacramento Bee, September 4, 2003

UC Davis reverses on biolab warnings

Officials now say U.S. anti-terror limits on disclosure don't apply.

By Pamela Martineau -- Bee Staff Writer

Reversing themselves, UC Davis officials now say a new federal anti-terrorism law would not prohibit them from directly notifying the public of the loss or release of dangerous pathogens from a proposed biolab on campus.

But they say they would use the stringent anti-bio-terrorism law as a guide in determining what they do.

"We'd have to assess whether it is in the public interest to disclose or not," said Patrick Schlesinger, campus counsel for the University of California system.

Last month, university officials said that the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 dictated that federal authorities -- not campus officials -- decide when the public is told of a release, theft or loss of a "select agent" from a laboratory.

Select agents are pathogens the government has determined could be used by terrorists in attacks.

University officials also said the law prohibited them from releasing information on the quantities and locations of select agents that would be studied on campus.

Earlier this summer, the university's interpretation of the federal law sparked significant controversy in Davis where the City Council and many residents oppose the construction of a national biocontainment laboratory in which scientists would study some of the world's deadliest diseases.

After clarification from federal officials, campus officials have revised their position on the bioterrorism law, saying that the public disclosure restrictions of the federal law do not apply to the university because it is not a federal agency. Officials said they would decide on a case-by-case basis whether to make public disclosures.

"It's absolutely our policy to inform the public of events on campus, especially if there is a public safety issue," said Lynne Chronister, associate vice chancellor for research administration at UC Davis.

"To the public, it may look like we've flip-flopped ... but we've had to develop a policy in the public eye," Chronister said.

Chronister and UC Davis counsel Steven Drown said they revised their interpretation of the bioterrorism act after consulting attorney James Holt of the federal Department of Health and Human Services. Holt could not be reached for comment Wednesday, but David Daigle, a press officer for the Centers for Disease Control and Prevention, which is an agency under the auspices of the federal health department, confirmed Holt's interpretation.

UC Davis officials added that the laws are fairly new and federal agencies such as the health department and CDC are still revising their policies regarding the laws' application.

Don Mooney, an attorney for a citizens group opposed to the lab, Stop UCD Bio Lab Now, said he finds little solace in the university's latest interpretation of the federal statutes.

"The way I see it, it's going to be a kind of haphazard interpretation of the law," said Mooney. "If they use the bioterrorism act as a guideline, we won't know necessarily what's being researched, who's doing the research and if there are problems internally."

Under the anti-bioterrorism act, individuals could be fined or jailed for disclosing restricted information about select agents.

Some Davis residents have said they oppose the so-called "hot lab" because they fear accidents or thefts from the facility could endanger local residents. They also fear the lab could become the target of terrorists.

Lab proponents claim the proposed facility would enhance the region's public health system and provide scientists with a state-of-the-art facility to study vaccines and therapeutics against deadly diseases.

The controversy over public access to information on select agents heated up in July when Mooney's group filed a California Public Records Act request with the university seeking information on the amount, location, thefts, losses or accidents involving select agents and other pathogens already being studied. The university identified some of the pathogens studied on campus but denied the remainder of the request, citing restrictions in the bioterrorism act. University officials also cited the California Public Records Act, which allows nondisclosure of certain information if they determine it is not in the public interest.

The university also stated in its public records act response that officials know of no reportable incidents involving select agents on campus.

A similar dispute is taking place in Texas, where citizen watchdog groups have been denied access to biosafety committee records by officials at the University of Texas Medical Branch at Galveston. The Medical Branch at UT already has a small biosafety level 4 facility and is vying -- along with UC Davis and at least four other institutions -- to build another, larger facility.

Officials at the Texas university denied the citizens' public record act request, citing the restrictions in the bioterrorism act and state laws.

UC Davis and other institutions vying for funds from the National Institutes of Health to build the "hot labs" expect to be notified later this month whether they received the award.

Chronister said the NIH expects to fund two labs, making awards of $120 million to each winning institution. Initially, UC Davis had expected a $140 million award, which, with the university's and state's $50 million match, would have allowed for a $190 million facility.

The recent reduction in the federal award required the university to slightly scale back its lab proposal to accommodate a $160 million facility.

Chronister said the NIH responded favorably to the university's lab proposal when federal officials visited the campus July 17.

"The NIH loved our location," Chronister said of the facility's proposed site on campus near the intersection of Interstate 80 and Highway 113. "They didn't feel it was located close to residences, but was near the hub of our medical district."