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Judge bans ISU from releasing proprietary ‘pink slime’ research
 
By DOUG SCHMITZ
Iowa Correspondent

AMES, Iowa — A state district judge has banned Iowa State University researchers from releasing food safety research data on Beef Products, Inc.’s (BPI) now-infamous “pink slime” – officially called lean finely textured beef (LFTB) – because of the Dakota Dunes, S.D.-based meatpacking plant’s trade secrets.

“The documents … contain information which, if examined by knowledgeable people employed by BPI’s competitors, could result in disclosure of confidential information about BPI’s existing food-processing methods and its development of new methods,” as would divulging email exchanges with ISU researchers, said Story County District Judge Dale Ruigh in his opinion last month.
Ruigh ruled that releasing the records would damage BPI’s proprietary food-processing techniques for making its beef additive, which critics have labeled pink slime.

Ruigh also said private companies would likely use ISU’s laboratories and faculty for private consulting if BPI’s trade secrets were made public, which would result in lost revenue for ISU and “could lead to a significant reduction in the use of ISU’s laboratory services by the private sector and thereby jeopardize the financial viability of the laboratories.”

The controversy stems from confidential research conducted by ISU microbiologist James Dickson, who BPI hired as a food safety consultant in 2002. Dickson’s research fell under the trade secrets exemption of Iowa’s Freedom of Information Act (FOI), Ruigh ruled.

Dickson said his research found its ammonia process “makes the product safer by killing bacteria that causes food-borne illness.” According to the judge’s opinion, Dickson “conducted all of his consulting work in compliance with applicable university regulations and policies. Dr. Dickson used ISU’s Food Safety Research Lab to conduct certain tests connected with his consulting work for BPI.”
In a news conference a year ago, USDA Secretary Tom Vilsack and Iowa Gov. Terry Branstad said “misinformation” coming out of the media about LFTB, commonly used in ground beef, forced BPI to close plants in Iowa, Kansas and Texas, laying off about 200 workers. BPI then filed a $1.2 billion defamation lawsuit against ABC News and scientists who criticized the product.

According to The Associated Press, ISU gathered 1,650 documents but declined to release them after BPI filed a petition for an injunction. BPI argued the records were exempt from Iowa’s public records law because they involved trade secrets, and that Dickson was acting as a private consultant, not a public employee. Its petition said Dickson performed testing on different pathogens to study “the integrity of existing BPI patented processes” and alternatives.

In late 2009, Seattle attorney Bill Marler sued for the records of the 2002 study of BPI’s LFTB process, with The New York Times subsequently filing a records request for the same information.
In Ruigh’s March 13 opinion, Marler sought “all communications between Dr. Dickson and BPI or BPI Technology and their agents,” as well as “copies of all reports, grant proposals, consulting agreements, test results, notebooks and lab books that contain results of studies conducted on BPI or BPI Technology products, processes and raw materials.”

In addition, Marler wanted to know about Dickson’s consulting work for BPI; how such work was approved and monitored; disclosure of any conflicts of interest; and whether federal, USDA or Iowa state funds were used to support the work.

Richard Jochum, BPI vice president and general counsel, testified the company retained Dickson as a private consultant for research and development purposes several years ago. Moreover, Dickson signed a nondisclosure agreement with BPI agreeing to keep information about BPI’s business and processes confidential.
When Dickson traveled to BPI’s plants, he was required to sign documents promising that he wouldn’t divulge to third parties any information he gained during his visits.

Although ISU agreed to turn over the sensitive information, BPI filed a lawsuit against ISU in 2010 and asked the Story County District Court to block the release of data to the public, fearing the disclosure would damage the company’s proprietary food-processing techniques.

“BPI made the decision not to seek patents on certain methods out of concern that its competitors would use the patent information to develop similar processes,” Ruigh wrote.

“Competitors have been quite aggressive in seeking information about BPI’s methods. Some have even tried to hire Dr. Dickson.
“The documents from the Food Safety Research Laboratory showing test results contain information which, if examined by knowledgeable people employed by BPI’s competitors, could result in disclosure of confidential information about BPI’s existing food-processing methods and its development of new methods.”
The court concluded except for certain invoices which show only the dollar amounts billed to BPI by ISU, “the requested documents constitute confidential records under Iowa Code section 22.7(3). Such conclusion shields disclosure of the documents under section 22.7.”

Under Iowa’s FOI Act, an exemption is provided that prevents information that could reveal private business tactics – such as secret recipes – from being released.

John Bickel, a Cedar Rapids, Iowa, attorney who represented BPI, said, “It’s in the best interest of the companies that do business in Iowa, the general public and the university” to block ISU from releasing documents concerning BPI’s trade secrets about its LFTB.

4/25/2013