FOIA News: Agency misspelled words to circumvent FOIA requests, House panel alleges

Health Officials Tried to Evade Public Records Laws, Lawmakers Say

N.I.H. officials suggested federal record keepers helped them hide emails. If so, “that’s really damaging to trust in all of government,” one expert said.

By Benjamin Mueller, NY Times, May 28, 2024

House Republicans on Tuesday accused officials at the National Institutes of Health of orchestrating “a conspiracy at the highest levels” of the agency to hide public records related to the origins of the Covid pandemic. And the lawmakers promised to expand an investigation that has turned up emails in which senior health officials talked openly about trying to evade federal records laws.

The latest accusations — coming days before a House panel publicly questions Dr. Anthony S. Fauci, a former top N.I.H. official — represent one front of an intensifying push by lawmakers to link American research groups and the country’s premier medical research agency with the beginnings of the Covid pandemic.

That push has so far yielded no evidence that American scientists or health officials had anything to do with the coronavirus outbreak. But the House panel, the Select Subcommittee on the Coronavirus Pandemic, has released a series of private emails that suggest at least some N.I.H. officials deleted messages and tried to skirt public records laws in the face of scrutiny over the pandemic.

Read more here.

FOIA News: ICYMI, OIP updates litigation sections of FOIA Guide

On February 27, 2024, the Office of Information Policy posted updated versions of Litigation Considerations Part 1 and Litigation Considerations Part 2 of the Department of Justice Guide to the Freedom of Information Act. In 2023, OIP updated three Guide sections: “Reverse FOIA,” “Exemption 2,” and “Exemption 5.” The Guide’s remaining 20 sections were last revised between 2020 and 2022.

Jobs, jobs, jobs: Weekly report 5/27/24

Federal positions closing in the next ten days

Gov’t Info. Specialist, Dep’t of the Army, GS 12, Redstone Arsenal, AL, closes 5/27/24 (non-public).

Gov’t Info. Specialist, Dep’t of Labor/OSHA, GS 9, multiple locations, closes 5/27/24 (non-public).

Sup. Gov’t Info. Specialist, Dep’t of Agric./APHIS, GS 13, remote, closes 5/28/24 (non-public).

Gov’t Info. Specialist, Dep’t of Labor/WHD, GS 11, Washington, D.C., closes 5/28/24 (non-public).

Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, GS 12, Tuscaloosa, Al (closes 5/28/24) (agency only).

Gov’t Info. Specialist, Dep’t of Veterans Affairs/IG, GS 9-11, Washington, D.C., closes 5/28/24 (non-public).

Sup. Gov’t Info. Specialist, Dep’t of the Treasury/OFAC, GS 14, Washington, D.C., closes 5/28/24.

Sup. Gov’t Info. Specialist, Dep’t of the Treasury, GS 14, Washington, D.C., closes 5/28/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Air Force, GS 9, Homestead AFB, FL, closes 5/29/24 (non-public).

Gov’t Info. Specialist, Dep’t of Homeland Sec./TSA, SV G-H, remote, closes 5/29/24 (agency only).

Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, GS 9-11, Fayetteville, AK, closes 5/20/24 (non-public).

Gov’t Info. Specialist, Dep’t of Health & Human Serv., GS 12, Washington, DC (closes 5/20/24) (non-public).

Gov’t Info. Specialist, Dep’t of State, GS 12-13, Washington, D.C., closes 5/31/24 (State employees).

Att’y-Advisor, Office of Mgmt. & Budget, GS 13, Washington, D.C., closes 5/31/24.

Federal positions closing on or after 6/7/24

Gov’t Info. Specialist, Dep’t of the Interior, GS 12-13, location negotiable, closes 6/9/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Treasury/BEP, GS 12-13, Washington, D.C., closes 6/10/24 (non-public).

Court opinion issued May 23, 2024

Cohodes v. DOJ (N.D. Cal.) -- following in camera review, finding that DOJ could not rely on Exemptions 6 and/or 7(C) to redact the following information originating from a dispute between plaintiff, a Wall Street short-seller, and biotech company MiMedx, specifically: (1) name of email author sent under a pseudonym to an attorney; (2) name and email address of attorney who forwarded email to FBI; (3) names of MiMedx witnesses interviewed by the government in 2018; and (4) anonymous email address from a person who sent an email to a witness offering to provide information about the plaintiff.

Summaries of all published opinions issued in 2024 are available here. Earlier opinions are available here.

FOIA News: More coverage on FOIA controversy at NIH

• By Liz Jassin, Did NIH official hide COVID-19 records?, The Hill, May 23, 2024

• By Dan Diamond & McKenzie Beard, A Fauci Advisor Deleted Emails. Congress Demanded To Know Why, Wash. Post, May 23, 2024.

• By Mandy Taheri, Biggest Bombshells From New Fauci COVID Emails, Newsweek, May 23, 2024 (updated May 24, 2024).

• (Opinion) By Mark Tapscott, Now Will the FOIA Get Some Real Teeth?, PJ Media, May 23, 2024.

FOIA News: Mark your calendars for NARA/OGIS events

Registration is now open for the final federal FOIA Advisory Committee meeting of the 2022-2024 term, which will be held virtually on on June 13, 2024. See more details here.

On July 24, 2024, the Office of Government Information Services will host its annual open meeting. Agenda and meeting materials are expected to be available in July.

Court opinions issued May 21, 2024

Human Rights Def. Ctr. v. DOJ (W.D. Wash.) -- on renewed summary judgment, concluding that: (1) DEA improperly relied on Exemption 6 in redacting “publicly available dates and attorney contact information connected to civil lawsuits”; (2) DEA properly invoked Exemption 6 to withhold names and identifying information of individuals who filed administrative claims against DEA, but that in camera review was required to evaluate certain records containing block redactions; and (3) DEA properly withheld remaining disputed information under Exemption 6, but failed to provide sufficient information to allow the court evaluate whether redacted information about a former DEA Academy trainee was truly identifying.

Driggs v. CIA (E.D. Va.) -- denying plaintiffs’ motion to compel a search of the CIA's operational files for records concerning Americans allegedly held as prisoners of war following the Korean War; finding that the requested records—if they exist—were protected by Exemption 3 in conjunction with the CIA Information Act, 50 U.S.C. § 3141, and that plaintiffs failed to show that any exceptions to the CIA Information Act applied.

Summaries of all published opinions issued in 2024 are available here. Earlier opinions are available here.

FOIA News: NIH advisor evaded FOIA with agency's help, says House report

Explosive emails show top NIH adviser deleted records, used ‘secret’ back channels to help Fauci evade COVID transparency

By Josh Christenson, NY Post, May 22, 2024

A top adviser at the National Institutes of Health (NIH) deleted records critical to uncovering the origins of COVID-19 — and used a “secret back channel” to help Dr. Anthony Fauci and a federal grantee that funded gain-of-function research in Wuhan, China, evade transparency.

NIH senior adviser Dr. David Morens improperly conducted official government business from his private email account and solicited help from the NIH’s Freedom of Information Act (FOIA) office to dodge records requests, according to emails revealed in a memo by the House Select Subcommittee on the Coronavirus Pandemic, which The Post obtained Wednesday.

“[I] learned from our foia [sic] lady here how to make emails disappear after I am foia’d [sic] but before the search starts,” Morens wrote in a Feb. 24, 2021, email. “Plus I deleted most of those earlier emails after sending them to gmail [sic].”

Read more here.

Court opinion issued May 17, 2024

Am. Oversight v. HHS (D.C. Cir.) -- reversing the district court’s decision granting judgment to the government and ruling: (1) in a unanimous opinion, that HHS failed to perform an adequate search for records concerning healthcare reform because it omitted “obvious alternative terms,” such as the unabbreviated names of the ACA and AHCA statutes, “without a detailed explanation”; and (2) in a 2-1 opinion, that communications between agencies and Congress (or their staffs) did not fall within the Exemption 5’s consultant corollary doctrine, as interpreted by the U.S. Supreme Court in Klamath, because “each side had an independent stake in the potential healthcare reform legislation under discussion”; the dissent contended that FOIA’s “text, purpose, structure, and legislative history” supported withholding under Exemption 5, notwithstanding Klamath, and that “the ramifications of the majority’s contrary interpretation of FOIA are actually quite breathtaking.”

Summaries of all published opinions issued in 2024 are available here. Earlier opinions are available here.

FOIA News: Heritage asks court to speed up Biden-Hur audio case

Conservative group tries to accelerate court fight over Biden-Hur audio

Democrats contend that Republicans want to use the recording as clips for campaign ads.

By Josh Gerstein, Politico, May 17, 2024

A conservative organization is urging a federal judge to speed up a court battle over access to audio recordings of five hours of interviews President Joe Biden had with a special prosecutor who later chose not to recommend criminal charges over allegations Biden mishandled classified information.

Lawyers for the Heritage Foundation argue in a new court filing that Biden’s invocation Thursday of executive privilege in response to a House subpoena for the audio adds urgency to three pending Freedom of Information Act lawsuits seeking the recordings.

Read more here.