Monday, December 24, 2001


UH wants to keep
settlement secret

The state Office of Information
Practices will rule on whether the
university needs to release its deal
with researcher Anthony Perry

By Tim Ruel

The University of Hawaii has entered a secret legal settlement with one of its former researchers, who sued over the rights to the famous mouse cloning technique, a move that has drawn the scrutiny of the state Office of Information Practices.

The office, acting on the request of the Star-Bulletin, has given the university a deadline of Jan. 7 to explain why the settlement with Anthony Perry is not available to the public. The university refused an earlier request by the Star-Bulletin to release details of settlement.

All sides agreed to keep the settlement confidential, said Walter Kirimitsu, UH's general counsel and senior vice president for legal affairs.

UH is withholding the record to prevent more lawsuits, Kirimitsu said. Frustration of a legitimate government purpose is one of the exceptions to the law that covers the openness of state records, he said.

An attorney representing Perry also refused to discuss the deal.

To Honolulu attorney Jeff Portnoy, the university doesn't have a case for keeping the entire settlement secret. "I think any attempt to keep it private will fail if challenged in court," Portnoy said. "There's no way you can keep that confidential."

Generally speaking, state settlements are presumed by U.S. courts to be a matter of public record, said Portnoy. The university is a state institution funded partly by taxpayers.

There are exceptions to the law, but the university doesn't appear to have a case, Portnoy said.

Perry was part of a team of scientists at UH that made headlines in 1998 by cloning mice. Perry had developed a technique to transfer genetic information from one organism into the egg of another. He used a "green gene" from a jellyfish to create green mice, a spectacle fit for big publicity.

The university licensed the technology to ProBio America Inc., a firm founded by Australians that used to be based in Honolulu. In 1999, Perry sued the university, saying he was entitled to the intellectual property.

UH countersued, saying Perry had divulged confidential information on laboratory work. The countersuit also named Honolulu Councilman John Henry Felix, Perry's business partner.

The settlement discussions began late this summer, said Kirimitsu.

By way of details, Kirimitsu would only say that the intellectual property will remain with the university.

The university's Board of Regents approved the deal with Perry during its October board meeting. The Regents discussed the matter in executive session, which is not open to the public.

If protecting intellectual property is important, Portnoy said, the university should simply delete specific references to the information, and make the rest of the settlement available for open review.

"There's no need generally to keep these documents away from the public," said Moya T. Davenport Gray, director of OIP. The office administers Hawaii's open records law.

The OIP plans to review the settlement internally to see if UH has a case for keeping the record secret. The OIP has the power to do that by state law. At first, however, the university refused to turn the settlement over to the OIP. Honolulu attorney Bert T. Kobayashi Jr., who represented UH in the Perry case, had advised the university not to provide the record to OIP, according to a Dec. 5 letter from Kirimitsu to the OIP. The university later relented.

"We basically had to threaten to go to court to get the documents," Gray said.

Under state law, Gray has the power to rule on whether the university should release the settlement. She plans to make her ruling before the start of this year's legislative session Jan. 16, after UH explains why it thinks the settlement should be confidential.

To Gray, the case carries a greater public interest than usual because of the larger social issues that surround the scientific advances of genetic engineering.

In April, Perry and another former UH researcher Teruhiko Wakayama joined Advanced Cell Technology Inc., a Worcester, Mass., firm that recently drew its own national headlines when it announced it had cloned a human embryo for the first time ever, drawing criticism from U.S. lawmakers.

Gray noted government research records are new ground for open-access law. The federal government is looking at its own policies, Gray said. "We're not the only jurisdiction that's doing this," she said.

Ka Leo O Hawaii
University of Hawaii

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