April 20, 3:40 p.m.: This story has been updated with comment from UTMB.
The Wuhan Institute of Virology has the right to ask a partnering lab in the U.S. to destroy all records of their work, according to a legal document obtained by U.S. Right to Know.
A memorandum of understanding between the Wuhan lab and the Galveston National Laboratory at the University of Texas Medical Branch states that each lab can ask the other to return or “destroy” any so-called “secret files” — any communications, documents, data or equipment resulting from their collaboration — and ask that they wipe any copies.
“The party is entitled to ask the other to destroy and/or return the secret files, materials and equipment without any backups,” it states.
This right is retained even after the agreement’s five year term ends in October 2022. All documents are eligible for destruction under the agreement’s broad language.
“All cooperation … shall be treated as confidential information by the parties,” the agreement states.
The directors of the maximum biocontainment labs in Wuhan and Texas announced a formal cooperative agreement in Science in 2018. The labs are two of just a handful of facilities in the world that do similar cutting edge work on novel coronaviruses. The lab in Texas, with funding from the National Institutes of Health, was doing biosafety training with the lab in Wuhan, which operates under the Chinese Academy of Sciences. The labs also intended to do joint research projects and share resources, according to the agreement.
The revelation that the Wuhan lab retained the right to call for the destruction of data on U.S. servers funded by U.S. taxpayers comes amid a debate about what sort of investigation is necessary to exculpate the city’s coronavirus research from suspicions it sparked the COVID-19 pandemic. It also raises questions about assurances from Wuhan Institute of Virology senior scientist Zhengli Shi that she would never delete sensitive data.
The clause also raises a number of legal red flags for the Texas lab, experts say.
“The clause is quite frankly explosive,” said Reuben Guttman, a partner at Guttman, Buschner & Brooks PLLC who specializes in ensuring the integrity of government programs. “Anytime I see a public entity, I would be very concerned about destroying records.”
Guttman said that even private entities are expected to have internal records retention and destruction policies, but that as a public institution the Texas lab faces an even higher standard under laws meant to safeguard federal and state taxpayer dollars. These laws include the federal False Claims Act and the Texas Public Information Act. The Galveston National Laboratory is part of the University of Texas System and receives federal funding.
“You can’t just willy nilly say, ‘well, you know, the Chinese can tell us when to destroy a document.’ It doesn’t work like that,” he said. “There has to be a whole protocol.”
The clause could also risk obstructing Congressional investigations into the COVID-19 pandemic.
The Texas lab was “built by the National Institutes of Health to help combat global health threats,” said Christopher Smith, a spokesman for UTMB, in a statement.”As a government-funded entity, UTMB is required to comply with applicable public information law obligations, including the preservation of all documentation of its research and findings.”
“UTMB believes it is an operational — and moral — imperative that all scientists working in biocontainment anywhere in the world have first-hand knowledge of the proven best practices in biosafety and laboratory operations,” Smith continued.”All research at UTMB is subjected to a rigorous and transparent pre-experiment approval protocol, including involvement and oversight by scientific experts who helped design federal guidelines.”
Only the Texas attorney general can make a determination about what otherwise releasable public records should be exempted from disclosure, according to Kelley Shannon, executive director of the Freedom of Information Foundation of Texas. It’s also unlawful to destroy records requested under the Texas Public Information Act.
Liza Vertinsky, an expert in global health law and intellectual property at Emory University, said that the all-encompassing definition of what is considered “secret” in the memorandum of understanding, or MOU, is problematic.
“The way I read the MOU, although it is poorly drafted, ‘secret’ refers to the ‘cooperation and exchanges, documents, data, details and materials’ that are part of this MOU,” she said. “It is as broad as the MOU, covering what the MOU is intended to cover.”
Edward Hammond, an independent biosafety proponent and a longtime advocate for more transparency at the Galveston lab, also flagged the broad language.
“In agreements like this that I’ve seen before, you have confidentiality provisions in relation to intellectual property…I can’t recall seeing an instance of these more general confidentiality provisions,” he said in an email. “Doesn’t this run against the purportedly pure academic interests of UTMB?”
In 2009, the Galveston lab unsuccessfully lobbied the Texas legislature for an exemption to the Texas Public Information Act to be written in order to prevent records being released to Hammond.
WIV calls data deletion accusations ‘appalling’
The agreement could also undermine claims that the WIV would never delete records. A WIV virus database that went dark in 2019 remains a source of intrigue for reporters, scientists, and U.S. intelligence agencies interested in the pandemic’s origins.
Wuhan Institute of Virology senior scientist Zhengli Shi told MIT Technology Review that allegations by Western biosecurity experts that her lab may have scrubbed records relevant to COVID-19 are “baseless and appalling.”
“Even if we gave them all the records, they would still say we have hidden something or we have destroyed the evidence,” Shi told the outlet, which cast any such suspicions as rooted in anti-Chinese prejudice.
The agreement also seems to address suspicions that the partnership could aid a bioweapons program either in the U.S. or in China, stating the labs will “exchange the virus resources strictly for the scientific research purposes.”
A number of clunky or unusual provisions in the agreement suggests it may have been drafted at least in part by Chinese partners and translated into English.
For example, it states nothing in the agreement should be construed as establishing a relationship between “master and servant,” unusual language in modern American legal documents.
Other documents obtained by U.S. Right to Know demonstrate that despite the formal collaboration, Galveston National Laboratory faced delays in obtaining a sample of SARS-CoV-2, the virus that causes COVID-19, from its partner lab at the pandemic’s epicenter. The Texas lab ended up obtaining its first sample from the U.S. Centers for Disease Control and Prevention.
U.S. Right to Know obtained the WIV-UTMB memorandum of understanding through the Texas Public Information Act as part of an investigation into risky viral research funded through taxpayer dollars.
Written by Emily Kopp