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. A copy of the decision, Henke vs. Department of Commerce and National Science Foundation, No. 95- 5181, slip op.