CASE CLOSED … what really happened in the 2001 anthrax attacks?

* the NAS has sequestered FBI submitted documents and will not make these available until the end of the study, over a year hence … the legal rationale for this sequestering is now expected next week.

Posted by DXer on September 4, 2009

* buy CASE CLOSED at amazon *

buy CC - why, who, readers

NOTE: for subsequent conversations between NAS and LMW, see related post … * new NAS response asserts that “much” of the FBI material it has received is exempt from FOIA disclosure, but fails to cite specific legal authority for such exemption; is this a wilful breach of NAS’s responsibility under FOIA?

LMW COMMENT (9/6/09) …

I’m actuallyimpressed with this answer on the Sunday of Labor Day weekend. There is no question in my mind that the NAS information office is being as responsive as they can. Now we’ll see what the NAS legal department has to say, and when.


UPDATE … NAS to LMW (9/6/09) …

I was out sick Friday and now it’s Labor Day weekend. I’ve asked our general counsel for the legal language you requested but I don’t know if I’ll have it for you before Tuesday.


UPDATE … LMW to NAS (9/6/09) …


Up until now, you have always answered my emails with hours, indeed minutes. But now it is several days and no answer.

The mystery over he missing FBI documentrs is beginning to cast doubts over the legitimacy of the NAS/FBI relationship. Could you please address the legal authority you claim to sequester the FBI documents when it seems that all documents received by the committee should have been available for public disclosure.

The failure to disclose the contract between NAS and the FBI contributes to the growing skepticism.

Thank you for your assistance in this matter.



UPDATE … LMW email to NAS (9/4/09) …


I wonder if you could explain what seems on the face of it to be an inconsistency. If material received by the committee is supposed to go into a public access file, why is material from the FBI excluded from that requirement. What is your lawful authority to sequester the FBI-provided material?




Lew, the NAS is a nonprofit private institution that operates under a congressional charter and the Section 15 of the Federal Advisory Committee Act which requires that material presented to our committees as part of their data gathering go in our Public Access Office files. Some material given to the anthrax committee is aleady in that file and I’ll ask someone from public access to send you link to list. However, the FBI case documents periodically being givenp to the committee will not go in the public access file until the end of the study. Fyi. The next committee meeting will be Sept 24-25 and an agenda should be available in our current projects database late next week or so. Sorry, I don’t have urls handy because I’m out of office today.


The following email was sent to our NAS contact (9/4/09) …


Many of us at the CASE CLOSED blog followed the opening hearings of the NAS study panel with great interest. The questions asked by panel members suggested that the study is off on exactly the right foot. There have since been reports of documernts received by the NAS panel, which documents are preumably now being reviewed. My question is whether these documents can now be made available, and if so, what is the procedure (FOIA?) for requesting them. Thanks again for your help in this matter of such great interest and importance to our country.


35 Responses to “* the NAS has sequestered FBI submitted documents and will not make these available until the end of the study, over a year hence … the legal rationale for this sequestering is now expected next week.”

  1. DXer said

    The former ATCC scientist who was the collections scientist at the Bacteriology Division at ATCC, sponsor of “anthrax weapon suspect” Ali Al-Timimi’s program, was the subject of this Washington Post feature on the science that the FBI (inexplicably) says points to Ivins.

    The Washington Post reported in October 2008 that no traces of human DNA were found in the anthrax powder or envelopes.

    “Touch DNA” can be done with little as a single cell apparently.

    What a difference a cell can make.
    Trail of Odd Anthrax Cells Led FBI to Army Scientist

    By Joby Warrick
    Washington Post Staff Writer
    Monday, October 27, 2008; A01

    “Top FBI officials hoped that science could provide a link to the bioterrorist, but they soon grasped the difficulty of the task. They searched for traces of human DNA in the anthrax powder, and in the envelopes, but found none.”

  2. DXer said

    When I approached the FDA Commissioner Lester Crawford a few years ago about benzene in soda (I represented a whistleblower), I did not know he had something like $68,000 in Pepsi stock and something like $78,000 in the leading school lunch distributor. I did not know he was a drinking water contamination expert and a former scientific advisor to the grocery manufacturer’s association (which carried water for my opponent, the American Beverage Association). Dr. Crawford resigned by email two days later — sending an email to employees that he was resigning and not giving any explanation. Senator Kennedy and Clinton demanded an explanation and got none. I had been given an email by someone at DOJ that would be sure to reach him or someone who would know what to do with information from a whistleblower.

    In the case of Amerithrax, I emailed Tara O’Toole with whistleblowing information about the anthrax mailings in December 2002 and asked her to publish it in the inaugural issue of a publication she was launching. She said the explanation was too long and instead the reviewer published his own piece about invading Iraq. The fact that explaining the correct solution to Amerithrax is complicated is not to be denied. The fact that the reviewer preferred his piece to mine is understandable. But the issue of good government and transparency requirements underlying good government are not. It is dumbfounding how often the standard has not been met in connection with Amerithrax and peripheral matters.

  3. DXer said

    Minor point: Even after the taxpayers paid the NAS nearly a million dollars (or whatever), they will not provide the first 100 pages free as provided under FOIA. The better practice would have been to upload the pictures from the PDF submitted by the government witnesses or just email them upon request, charging for copies over 100 pages.

    Not all observers profit from the solution of Amerithrax.

    I don’t mind that Tara O’Toole has this industry connection (that is not a surprise). But I think the argument — being left to an ethics officer to make no less — that it should not have been disclosed is offensive and stupid. Does the ethics officer really want to exchange precedent?

    Obama Nominee Head Of Bioterrorism Defense Omitted Ties To Big Biotech Pharma

    Washington : According to latest report published in Washington Times. President Obama’s nominee at the Department of Homeland Security overseeing bioterrorism defense has served as a key adviser for a lobbying group funded by the pharmaceutical industry that has asked the government to spend more money for anthrax vaccines and biodefense research.

    But Dr. Tara O’Toole, whose confirmation as undersecretary of science and technology is pending, never reported her involvement with the lobbying group called the Alliance for Biosecurity in a recent government ethics filing.

    The alliance has spent more than $500,000 lobbying Congress and federal agencies — including Homeland Security — since 2005, congressional records show.
    However, Homeland Security officials said Dr. O’Toole need not disclose her ties to the group on her government ethics form because the alliance is not incorporated: “There’s no legal existence so she wouldn’t have to disclose it,” said Robert Coyle, an ethics official for the Department of Homeland Security.

    Analysts say the lack of disclosure reflects a potential loophole in the policies for the Obama administration, which has boasted about its efforts to make government more transparent. They also question lobbying laws that allow such a group to spend hundreds of thousands of dollars without the public knowing exactly how much money each of the companies that belongs to the group contributes, though such arrangements are permitted under the law.
    “You’re not allowing the public to know the full background of this nominee,” said Judy Nadler, a senior fellow at the Markkula Center for Applied Ethics at Santa Clara University in California. “It shouldn’t matter whether it’s incorporated or not.”
    Craig Holman, legislative director of the nonpartisan watchdog group Public Citizen, said the lack of disclosure “definitely and clearly runs counter to the intent of the law.”

    Ethics rules require nominees to report any paid or unpaid positions held outside of government, including but not limited to those of “officer, trustee, general partner, representative, employee or any consultant of any corporation, firm, partnership or other business enterprise ….” Dr. O’Toole signed a letter on behalf of the group sent to the White House as recently as March.

    Dr. O’Toole declined to comment for this article. Her office referred questions to Mr. Coyle at Homeland Security and to officials for the Alliance for Biosecurity, who said the group is in “full compliance” with lobbying rules and noted that there were no financial ties between the Center for Biosecurity, where Dr. O’Toole is chief executive, and the lobbying group she help found.
    In written testimony to Congress, Dr. O’Toole said the alliance was “created to protect the Center for Biosecurity’s status as an honest broker between the biopharma companies and the U.S. government.”

    As undersecretary of science and technology, one of Dr. O’Toole’s responsibilities would involve overseeing the department’s chemical and biological division, which is in charge of making sure the nation is prepared to defend itself against chemical and biological attacks.
    Dr. O’Toole was nominated less than four years after the alliance was formed in 2005. She has served as the group’s unpaid strategic director and has signed her name on more than a dozen letters sent to Congress and federal agencies.

    The group’s letters to policymakers often seek more money for research and vaccines. She signed the letters as the group’s strategic director, in addition to listing her full-time paid job as director of the Center for Biosecurity, which is affiliated with the University of Pittsburgh.

    The letters, including one that Dr. O’Toole sent to House Speaker Nancy Pelosi, California Democrat, last fall, describe the Alliance for Biosecurity as a “collaboration” among the Center for Biosecurity of the University of Pittsburgh Medical Center, pharmaceutical companies and biotechnology companies “working to develop vaccines, medicines and other medical countermeasures for the nation’s Strategic National Stockpile.”

    Members include companies such as Pfizer Inc., Sig Technologies and PharmAthene Inc. The group discloses the letters and list of members on a Web site.
    But for all its lobbying and letters to Congress, the alliance isn’t incorporated, it doesn’t have a bank account and its day-to-day operations are overseen by the K Street lobbying arm of Drinker Biddle & Reath LLP, which also lobbies on behalf of the alliance, according to records and interviews.
    The alliance’s legal counsel, Anita Cicero, is also a Drinker Biddle lawyer who serves as a lobbyist for the group. In an e-mail response to questions about the alliance, Ms. Cicero said the group was formed to work “in the public interest to improve prevention and treatment of severe infectious diseases – particularly those diseases that present global security challenges in the 21st century.”

    Ms. Cicero described the lobbying activities as focusing on broad issues. “The overarching advocacy issues we address run across the industry, and we do not conduct lobbying activities to advance the commercial interests of any individual member company,” she said.

    Still, a review of the group’s correspondence to federal lawmakers along with member companies’ public disclosures to investors show that the lines between advocacy and commercial interests aren’t always clear.

    In an Oct. 31 letter to Mrs. Pelosi signed by Dr. O’Toole and two other alliance officials, the group called on Congress to include more than $900 million for the “advanced development of medical countermeasures” to be administered by the Biomedical Advanced Research and Development Authority.
    The letter also was signed by the chief executive officer of member company PharmAthene, David Wright, who was one of the two first co-chairmen for the alliance after its creation in 2005.

    Mr. Wright’s company has a big financial interest in securing work from the authority, according to investor filings. A Securities and Exchange Commission filing last summer disclosed that PharmAthene has been trying to win a contract administered by the authority to supply 25 million doses of an anthrax vaccine to the national stockpile, which is overseen by the Department of Health and Human Services.
    As undersecretary, Dr. O’Toole wouldn’t be directly responsible for decisions on which vaccines to develop or buy. Still, she would oversee the government’s threat assessments on the risks of bioagents.

    Dr. O’Toole has told the Senate in written testimony that she would adhere to all ethics rule on conflicts of interests, but that because she has no financial interest in PharmAthene, she’s not aware of any recusal requirements if she were to become involved in decisions concerning government funding for anthrax vaccine development.

    Ethics groups say the alliance’s setup is an example of what critics call “stealth lobbying,” in which like-minded companies form a loosely knit compact and spend lots of money lobbying the government. The arrangement is legal, but it exposes loopholes that prevent the public from finding out how much money each company pays and whether one business exerts more control over the others.

    Ms. Cicero said the group is complying with all applicable federal laws and that the alliance discloses on a Web site its membership list and correspondence to the White House, Congress and federal agencies. She said the companies pay a “pro rata” share to the Drinker Biddle & Reath firm.

    “The alliance does not generate income, does not have a bank account and does not owe taxes,” she said.

    Ms. Cicero said the law firm “regularly convenes consortia of biopharma companies that share common goals or interests an
    d provides secretarial and legal support for the groups.” She said the alliance was formed so companies, academic institutions and the government could work together to “accelerate the development of therapeutic and vaccine countermeasures.”

    Ms. Cicero said Dr. O’Toole no longer has an active role as the strategic director for the alliance.

    Another lobbying client of the firm, the International Pharmaceutical Aerosol Consortium, appears structured similarly. There are no records of any incorporation papers for that group, either. The group has a Web site listing several pharmaceutical companies as members, and Senate records show it has paid more than $250,000 to Drinker, Biddle & Reath since 2007.

    Government watchdog groups acknowledge that the arrangement is legal but say it seems at odds with lobbying reform laws that were intended to shed more light on who bankrolls and controls special interest groups.

    “At the end of the day, companies that form coalitions like this are being able to get around having to disclose the full breadth of who they are and what they’re doing and what they’re doing,” said Dave Levinthal, a spokesman for the nonpartisan Center for Responsive Politics. “Does that cut against an open and transparent government? It appears that it does.

    “Stealth lobbying has been taking place for years and despite the focus on the influence of lobbying, what’s happening is that organizations are finding, if not loopholes, then ways around the spirit of the law,” he said. “Companies that are lobbying Congress are not necessarily disclosing the full strength of their lobbying.”

  4. DXer said

    Chris Painter, a cybersecurity Justice person, is now acting director of cybersecurity for the White House National Security Council. He had a great quote in an interview about how it is important that the government agencies share — because the bad guys are.

    I think it’s great that someone as smart and hardworking (and funny) as Chris is in such a position — where he can make a difference.

  5. DXer said

    Sent 9/8/09
    Review of the Scientific Approaches used During the FBI’s Investigation of the 2001 Bacillus Anthracis Mailings
    Pin# BLSX-K-08-10-A

    List of Materials For The Public Access File
    1. 7/2/2009
    email from Joseph Baltar, affiliation unknown
    title: FBI WATCH [BLSX-K-08-10-A] – Review of the Scientific Approaches used During the FBI’s Investigation of the 2001 Bacillus Anthracis Mailings

    2. 7/3/2009
    email from E. Barry Skolnick, affiliation unknown
    title: shall the environmental monitoring science of the FBI’s “Amerithrax” investigation be within the scope of the NAS/NRC “…Anthrax mailings”

    3. 7/6/2009
    email from E. Barry Skolnick, affiliation unknown
    title: Shall the environmental monitoring science of the FBI’s “Amerithrax” investigations be within the scope of the NAS/NRC “…Anthrax Mailings” Project’s inquiries?
    attachment: Testimony of Robert G. Hamilton, Ph.D. Subcommittee of National Security, Emerging Threats and International Relations, Committee on Government Reform, U.S. House of Representatives, May 19, 2003

    4. 7/1/2009
    email from Marcia Ann Chambers, affiliation unknown
    title: Your appointment to the NAS on anthrax inquiry.

    5. 7/9/2009
    email from E. Barry Skolnick, affiliation uknown
    title: Vetting the FBI’s “environmental monitoring” science [BLSX-K-08-10-A] – Review of the Scientific Approaches used During the FBI’s Investigation of the 2001 Bacillus Anthracis Mailings

    6. 7/24/09
    submitted by Steven E. Schutzer, University of Medicine and Dentistry of New Jersey
    PDF article: Building Microbial Forensics as a Response to Bioterrorism
    Bruce Budowle, Steven E. Schutzer, Anja Einseln, Lynda C. Kelley, Anne C.Walsh, Jenifer A. L. Smith, Babetta L. Marrone, James Robertson, Joseph Campos. 26 SEPTEMBER 2003 VOL 301 SCIENCE

    7. 7/31/09
    submitted by E. Barry Skolnick, affiliation unknown
    public comments addressed to committee during public comment session of meeting 1
    TXT file and hard copy document

    8A. 7/30/09
    submitted by Chris Hassell, Federal Bureau of Investigation
    PDF file of Powerpoint presentation delivered to Committee during meeting 1 day 1 (with page numbers)

    8B. 7/30/09
    submitted by Chris Hassell, Federal Bureau of Investigation
    PDF file of Powerpoint presentation delivered to Committee during meeting 1 day 1 (without page numbers)

    9. 8/3/09
    submitted by Chris Hassell, Federal Bureau of Investigation
    PDF file of comments to accompany Powerpoint presentation item #8A

    10. 7/31/09
    submitted by Bruce Budowle, University of North Texas Health Science Center
    Powerpoint of presentation given during meeting 1 day 2

    11. 7/31/09
    submitted by Claire Fraser-Liggett, University of Maryland School of Medicine
    Powerpoint of presentation given during meeting 1 day 2

    12. 7/31/09
    submitted by E. Barry Skolnick, affiliation unknown
    emailed list of citations committee may wish to reference (txt format)
    Attachment: PDF file of Powerpoint by Douglas Beecher on sampling techniques

    13. 8/11/2009
    submitted by Chris Hassell, Federal Bureau of Investigation
    PDF of AMX press conference transcript – science version

    14. 8/11/2009
    submitted by Chris Hassell, Federal Bureau of Investigation
    PDF of AMX press conference transcript – general version

    15. 9/3/2009
    submitted by FBI
    PDF file, list of peer reviewed articles relating to anthrax investigation

  6. DXer said

    Dugway says that it made a dried powdered aerosol using virulent anthrax in 1998 for use in decontamination studies.

    Given a former Zawahiri associate 1 mile from IANA headquarters participated in decontamination studies at Dugway in 1999, he should be asked:

    When did he do the research with Bruce Ivins at USAMRIID in connection with which Bruce supplied virulent Ames? (I’ve asked but get no reply from USAMRIID or the Ann Arbor researchers).

    Relatedly, when did he do the research at JHU APL? (JHU APL did aerosol testing work for DARPA with BL3 testing done at USAMRIID). (See numerous articles in the Johns Hopkins APL Technical Digest).

    The FBI’s leading anthrax expert John Ezzell tells me that in the 1990s made an aerosol using Ames for DARPA. He says it tested to be inactive upon irradiation.

    But those of us following the matter remember the instances in 2001 in which after irradiation live spores were found (as I vaguely recall, one involved a shipment to Los Alamos and one involved shipment to a children’s hospital in the Bay Area).

    A NATION CHALLENGED: THE INVESTIGATION; U.S. Recently Produced Anthrax In a Highly Lethal Powder Form
    Published: Thursday, December 13, 2001

    William C. Patrick III, a scientist who made germ weapons for the United States and now consults widely on biological defenses, told a group of American military officers in February 1999 that he taughtDugway personnel the previous spring how to turn wet anthrax into powders, according to a transcript of the session.

    The process, Mr. Patrick told officers at Maxwell Air Force Base in Alabama, was not as refined as the one used in the heyday of the government’s germ warfare program, but it worked. ”We made about a pound of material in little less than a day,” he told the officers. ”It’s a good product.”

    He did not say what strain of anthrax was used in this work.

    But Ms. Nicholson, the Dugway spokeswoman, said workers there ”never produced more than a few grams” of powdered anthrax in any given year. There are 454 grams in a pound.

    Experts have said the letter sent to Senator Tom Daschle contained about two grams of anthrax spores — a small amount, but enough, if distributed with high efficiency, to infect millions of people.

    Ms. Nicholson said the dry anthrax made in 1998 was of the strain known as Vollum 1B, which the Army used to make anthrax weapons before the United States renounced biological arms in 1969. She said it was used for decontamination studies.

    ”You have to use live spores because you are determining the rates of inactivation or kill,” she said.

    She said Dugway did make one-pound quantities of Bacillus subtilis, a benign germ sometimes used to simulate anthrax. Mr. Patrick could not be reached for comment on this point.

    Elisa D. Harris, who handled biological defense issues on the National Security Council for the Clinton administration, said she knew nothing about a pound of dried anthrax being made at Dugway. She added that after President Richard M. Nixon unilaterally ended America’s germ weapons program, the United States destroyed about 220 pounds of anthrax.

    Dugway’s production of dried anthrax is part of the government’s secret research program on how to defend against germ weapons, which gained momentum in the late 1990’s. The Clinton administration began a series of projects aimed at understanding the nation’s vulnerabilities to biowarfare and devising ways combat the threats.

    Experts like Dr. Rosenberg have argued that some of these programs violate the 1972 global treaty banning germ weapons. Others say these projects, including making small amounts of the germs, are permitted by the treaty and are vital to defense research.

    It is uncertain how the disclosure by Dugway will be perceived abroad, where some European countries have recently accused the United States of turning its back on the germ treaty, charges that the Bush administration denies.

    It is not known whether Dugway has shared its skills in making biological powders with other institutions, but it has shared its supply of the Ames strain.

    In 1997, it sent germs to the Armed Forces Institute of Pathology in Washington, said Christopher C. Kelly, a spokesman there. He added that the institute, a sister lab to the Naval Medical Research Center, uses Ames to develop research assays for biological defense.

    F.B.I. agents have interviewed staff members there, he said.

    Intelligence officials say that Battelle Memorial Institute, a military contractor in Ohio, has experience making powdered germs. They say the contractor participated in a secret Central Intelligence Agency program, code-named Clear Vision and begun in 1997, that used benign substances similar to anthrax to mimic Soviet efforts to create small bombs that could emit clouds of lethal germs.

    Katy Delaney, a Battelle spokeswoman, would not comment on the laboratory’s anthrax work except to say that the lab had always cooperated ”with any and all legitimate inquiries from law enforcement.”

  7. DXer said

    Did the Ann Arbor-based IANA head, Egyptian Bassem Khafagi, know the Ann Arbor-based Egyptian Tarek Hamouda, who was supplied virulent Ames by Bruce Ivins and graduated from Cairo Medical in December 1982 where Ayman Zawahiri openly recruited in a room set aside for that purpose?

    Dr. Hamouda’s lab was one mile away from IANA headquarters. Cairo Medical was where Ayman’s dad taught pharmacology and his sister Heba researched antimicrobials.

    Dr. Hamouda received his PhD at Cairo Medical in microbiology in 1994 and was principal investigator a few years later in DARPA-funded research that involved virulent Ames supplied by Bruce Ivins.

    A DARPA Program Manager told a good friend of mine in Fall 2001 that they even knew what machine the attack anthrax was made. (Any and all whistleblowing protection laws apply in full force).

    The Ann Arbor researchers had done aerosol work using simulants in 1999 at Dugway, which had the matching virulent Ames, and other research was done at John Hopkins University Applied Physics Laboratory and by the U.S. Army Institute of Surgical Research.

    The FBI’s anthrax expert John Ezzell called me a month or two ago and said that he made aerosolized simulant using virulent Ames at the request of DARPA and gave it to John Hopkins. He says testing showed that it had been irradiated but we’ve seen from examples dating to 2001 that sometimes some anthrax survived the irradiation.)

    Bruce Ivins said that in an email that he had heard (from someone involved in examination of the anthrax for the FBI) that the aerosol that John Ezzell made was closest to the attack anthrax.

    From an EPA report:

    “In December 1999, the U.S. Army tested a broad spectrum nanoemulsion and nine other biodecontamination technologies in Dugway, Utah, against an anthrax surrogate, Bacillus globigii. Nanoemulsion was one of four technologies that proved effective and was the only nontoxic formulation available. Other tests against the vaccine strain of B. anthracis (Sterne strain) were conducted by the John Hopkins University Applied Physics Laboratory and by the U.S. Army Institute of Surgical Research.”

  8. DXer said

    Speaking of FOIA, a 2009 book about Newsweek stories features the article “The Case Still Isn’t Closed.”

    “When the FBI publicly branded the late Dr. Bruce Ivins as the anthrax killer, it unsealed court affidavits suggesting a possible motive for the mailing to one target: NBC anchor Tom Brokaw. According to the affidavits, Ivins was angry about repeated Freedom of Information Act requests from Gary Matsumoto, identified as “an investigative journalist who worked for NBC News” who was looking into Ivin’s work on an anthrax vaccine. “Tell Matsumoto to kiss my ass,” the affidavit says Ivins wrote in an Aug. 28, 2001, email, noting that was “weeks” before the Sept. 18, 2001, anthrax mailing addressed to Brokaw. But Matsumoto told NEWSWEEK the FBI never interviewed him as part of its investigation. If it had, he says, he could have told them he’d actually left NBC News five years earlier. At the time he was bombarding Ivins’s lab with FOIA requests, he was employed by ABC.”

    Is it probative evidence of murder that someone privately emails a colleague and says, in regard to a FOIA request, “tell him to kiss my ass.”

    No. I’ve told Gary to kiss my ass and like it more than once.

    The Newsweek story quotes Jeffrey Adamovicz saying “I’d say the vast majority of people [at Fort Detrick] think he had nothing to do with it.”

    A year later, that statement has stood the test of time.

    The title of the article has also.

  9. DXer said

    On the first year anniversary of the mailed anthrax to the US Senators, “anthrax weapons suspect” Ali Al-Timimi arranged to have a letter threatening the US with dire consequences if Iraq was invaded. He had gotten his religious mentor Sheik Al-Hawali to sign it. Sheik Al-Hawali’s views were the subject of the trial of Sami Al-Hussayen (who paid Al-Kidd, in the news this weekend, $20,000 to assist him).

    Given that the forensics pointed to use of silica in the growth medium — a method that was confidential in 2001 and had been co-invented by Ali Al-Timimi’s suitemates — to play hide the ball on the issue of silica and its deliberate addition to the growth medium is to play a dangerous game indeed. To hide the Administration’s embarrassment over allowing the infiltration by Andrew Card’s former assistant, would be to obscure the possibility that the know-how was used by the Salafi-Jihadists. Here, given the FBI scientist guiding the scientific study was the collections scientist at ATCC’s bacteriology division (which was located at GMU) and ATCC sponsored Al-Timimi’s program, to hide from public view the documents that scientist is giving the NAS is outrageous. The best disinfectant is sunshine.

    “Jurors endured an hour of harrowing, bloodthirsty rhetoric about killing Jews and destroying Israel in a lecture by an extremist Saudi sheikh, read in part to the court today by an FBI intelligence analyst.

    The lecture, by Sheikh Safar Al-Hawali [Al-Timimi’s religious mentor], propounded a theory that Christians and Jews, and particularly the United States, are trying to take over the Middle East by giving Israel sovereignty over the whole region, and that the only answer is to destroy Israel. It praised Palestinian fighters, especially suicide bombers, and bragged of such victories as a “mujahid” who killed 10 people, seven soldiers and three settlers, at a checkpoint in Israel, then returned home for a calm and peaceful dinner with his family.

    “Your brothers in the blessed occupied land have changed from oppression to resistance,” Al-Hawali said in the lecture. “This last Ramadan, the number of dead Jews is closer to the number of our dead Palestinian brothers. … This is a huge improvement.”

    Hatred of Jews and Israel oozed throughout the Saudi sheikh’s lecture, which proclaimed that it’s time to “fight and … to expel this hated country that consists of those unclean, defiled, the cursed.”

    Al-Hussayen helped set up a live Internet broadcast of the lecture, which prosecutors say shows he provided support to terrorists. Defense attorneys say the lecture doesn’t represent his views – and that the First Amendment allows people to express opinions, even reprehensible ones like Al-Hawali’s.”

  10. DXer said

    Before FACA was amended so as to express apply to NAS, there was litigation over the issue. The NAS addressed how it viewed itself in an annual report.

    “The suit that alleges that NAS is, in a sense, a federal agency, derives from an attempt to gain access to the files of our Committee on Motor Vehicle Emissions while their study was in progress. … This suit has caused us to examine the true legal status of the National Academy of Sciences. It is easily agreed that we are not an intrinsic part of the government itself. We were chartered by the Congress but so has been a remarkable variety of other organizations. Considering the recent extensions, by the Congress, of the definition of an “agency” for the purposes of the Freedom of Information Act, we are certainly not a government-owned corporation; nor are we a government-controlled corporation. Nor, do we fit into any of the categories one may distinguish among all other government-chartered organizations, most of which are patriotic societies or agencies for doing good in the District of Columbia.

    Our study of this question leaves us with the conclusion that the Academy exists sui generis; we are the only member of our class of institution: A federally chartered, private organization, legally distinguisable by the fact that it alone was created to serve as an official adviser to the United States Government. The Academy is unique — and that uniqueness must be preserved. Its preservation makes possible a unique service to the people of the United States — the most expert technical advice to the government rendered as impartially as we can arrange. Your participation in that enterprise and your thoughtful selection of those who manage it for you is the only basis for the continued credibility of the Academy in a cynical, disbelieving world.”

    The issue, however, is resolved now by the express language of FACA. NAS therefore need not devote any energy to urging how special it is. NAS is free to invoke the exemption under FOIA relating to pending law enforcement matters. The FBI has clearly stated that it is on the verge of closing the case and so the grounds for withholding will then immediately become moot. The documents (with particular documents subject to redaction or withholding under other specific exemptions) should then be promptly deposited.

    It would seem that there are not grounds for withholding the contract under the exemption for pending law enforcement matters. The probativeness of the evidence regarding the guilt or innocence of a particular person is expressly excluded from consideration by the NAS.

    We shouldn’t fault Lew’s correspondent for delay occasioned by the fact that it is Labor Day weekend. We should permit the NAS and FBI to consider the application of FACA — and whether a more nuanced application of FACA is in order.

    In contrast to the NAS, USAMRIID has produced hundreds of pages relating to Ivins and even the document detailing distribution of virulent Ames from flask 1029.

    As an example of particular documents, the suggestion that the published articles relied upon by the FBI’s lab that were provided to the NAS are not produceable under FOIA would not seem to have any basis under the FOIA exemptions. The Defense Intelligence Agency provided under FOIA the articles relied upon by Dr. Zawahiri related to development of anthrax as a weapon. The FBI surely can provide the articles relied upon by Dr. Bannan especially given the marching orders given this year by President Obama and Attorney General Holder to exercise discretion in favor of disclosure.

    The NAS has gutted and made meaningless the opportunity for public comment.

    The White House under the Bush Administration — especially the Vice President’s Office — thought it was special too.

    The American public is tired of special and deserves better.

    • DXer said

      Before rereading Eric Holder’s recent memo and President Obama’s memo on how FOIA should be interpreted, let’s turn to the finer points raised in the Department of Justice Freedom of Information Guide, May 2004 (the most current version I have) and its explanation of Exemption 7, the exemption of records compiled for law enforcement purposes. NAS says the file will be opened after its review is complete — yet there is nothing in the FOIA guide that would permit that, statute or implementing regulations that contemplate that as a justification for delaying disclosure. The availability of the documents does not depend on the pendency of the post-mortem (literally) NAS review. At most, it depended on the pendency of the Amerithrax investigation which the FBI has said since August is solved and being closed.

      “Exemption 7
      Exemption 7 of the FOIA, as amended, protects from disclosure “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual.” (1)

      The threshold requirement for Exemption 7 has been modified by Congress twice since the enactment of the FOIA. In its original form, this exemption simply permitted the withholding of “investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency.” (2) As such, it was consistently construed to exempt all material contained in an investigatory file, regardless of the status of the underlying investigation or the nature of the documents requested. (3) In 1974, Congress rejected the application of a “blanket” exemption for investigatory files and narrowed the scope of Exemption 7 by requiring that withholding be justified by one of six specified types of harm. (4) Under this revised Exemption 7 structure, an analysis of whether a record was protected by this exemption involved two steps: First, the record had to qualify as an “investigatory record compiled for law enforcement purposes”; second, its disclosure had to be found to threaten one of the enumerated harms of Exemption 7’s six subparts. (5)

      Congress amended Exemption 7 again in 1986, retaining its basic structure as established by the 1974 FOIA amendments, but significantly broadening the protection given to law enforcement records virtually throughout the exemption and its subparts. (6) The Freedom of Information Reform Act of 1986, often referred to as the 1986 FOIA amendments, modified the threshold requirement of Exemption 7 in several distinct respects; it deleted the word “investigatory” and added the words “or information,” such that Exemption 7 protections are now potentially available to all “records or information compiled for law enforcement purposes.” (7) And, except for Exemption 7(B) and part of Exemption 7(E), it altered the requirement that an agency demonstrate that disclosure “would” cause the harm each subsection seeks to prevent, to the lesser standard that disclosure “could reasonably be expected to” cause the specified harm. (8)

      Exemption 7’s expansion to cover “information” compiled for law enforcement purposes extended protection to compilations of information as they are preserved in particular records and also to information within the record itself, so long as that information was compiled for law enforcement purposes. (9) It plainly was designed “to ensure that sensitive law enforcement information is protected under Exemption 7 regardless of the particular format or record in which [it] is maintained.” (10) It was intended to avoid use of any mechanical process for determining the purpose for which a physical record was created and to instead establish a focus on the purpose for which information contained in a record has been generated. (11) In making their determinations of threshold Exemption 7 applicability, agencies should focus on the content and compilation purpose of each item of information involved, regardless of the overall character of the record in which it happens to be maintained. (12)

      This amendment of Exemption 7 shifted its focus from a “record” to an item of “information,” building upon the approach to Exemption 7’s threshold that was employed by the Supreme Court in FBI v. Abramson, (13) in which the Court pragmatically focused on the “kind of information” contained in the law enforcement records before it. The amendment essentially codified prior judicial determinations that an item of information originally compiled by an agency for a law enforcement purpose does not lose Exemption 7 protection merely because it is maintained in or recompiled into a non-law enforcement record. (14) This properly places “emphasis on the contents, and not the physical format of documents.”(15)

      The scope of Exemption 7 was further expanded by the 1986 FOIA amendments, which removed the requirement that records or information be “investigatory” in character in order to qualify for Exemption 7 protection. (16) Under the former formulations, agencies and courts considering Exemption 7 issues often found themselves struggling with the “investigatory” requirement, which held the potential for disqualifying sensitive law enforcement information from Exemption 7 protection. (17) Courts construing this statutory term generally interpreted it as requiring that the records in question result from specifically focused law enforcement inquiries as opposed to more routine monitoring or oversight of government programs. (18)

      The distinction between “investigatory” and “noninvestigatory” law enforcement records, was not always so clear. (19) Moreover, the “investigatory” requirement per se was frequently blurred together with the “law enforcement purposes” aspect of the exemption, so that it sometimes became difficult to distinguish between the two. (20) Law enforcement manuals containing sensitive information about specific procedures and guidelines followed by an agency were held not to qualify as “investigatory records” because they had not originated in connection with any specific investigation, even though they clearly had been compiled for law enforcement purposes. (21)

      The 1986 FOIA amendments were a response to such troublesome distinctions, and they broadened the potential sweep of the exemption’s coverage considerably. (22) Under those FOIA amendments, the protections of Exemption 7’s six subparts were made available to all records or information compiled for “law enforcement purposes.” (23) Even records generated pursuant to routine agency activities that previously could not be regarded as “investigatory” now should qualify for Exemption 7 protection when those activities involve a law enforcement purpose. This certainly includes records generated for general law enforcement purposes that do not necessarily relate to specific investigations, although some relatively recent decisions still carelessly contain the pre-1986 FOIA amendment “investigatory” language. (24)

      Records such as law enforcement manuals, for example, which previously were found unqualified for Exemption 7 protection only because they were not “investigatory” in character, (25) now should satisfy the exemption’s threshold requirement. (26) The sole issue remaining is the application of the phrase “law enforcement purposes” in the context of the amended Exemption 7.

      Relatively few cases have addressed the parameters of this less-demanding threshold standard under the 1986 FOIA amendments, so it is useful also to examine the cases interpreting the identical “law enforcement purposes” language under the prior version of this exemption, as all law enforcement records found qualified for exemption protection under the pre-1986 language of Exemption 7 undoubtedly remain so. (27)

      Thus, the “law” to be enforced within the meaning of the term “law enforcement purposes” includes both civil (28) and criminal statutes, (29) as well asthose statutes authorizing administrative (i.e., regulatory) proceedings. (30)

      Most significantly, the courts recognize that “law enforcement” within the meaning of Exemption 7 extends beyond these traditional realms into the realms of national security and homeland security-related government activities as well. (31)For example, in Center for National Security Studies v. United States Department of Justice, the D.C. Circuit recently explained that the names of post-9/11 detainees, found on documents that traditionally have been public, are properly withheld because they were compiled for the law enforcement purpose of pursuing a “heinous violation of federal law as well as a breach of national security.” (32) Indeed, in accepting arguments that terrorists could use information previously considered innocuous and safe for public release, courts have shown a new sensitivity to the needs of homeland security by recognizing the law enforcement nexus for certain documents that readily could be used by terrorists to assess the likelihood of detection, to analyze the degree of damage inflicted by striking one particular target instead of another, or even to intimidate witnesses and/or the families of witnesses. (33) The courts that have uniformly determined that documents related to national or homeland security satisfy Exemption 7’s law enforcement requirement have discussed repeatedly that the agencies’ mandates to protect society and to prevent violence are key to establishing the threshold’s satisfaction. (34) Furthermore, in this area courts pointedly emphasize the propriety of judicial deference; indeed, in Center for National Security Studies, the D.C. Circuit observed that it was acting fully “in accord with several federal courts that have wisely respected the executive judgments in prosecuting the national response to terrorism” by deferring to the executive on “decisions of national security,” especially in establishing the law enforcement purpose and in foreseeing the harm from disclosure. (35) (For further discussions of homeland security-related matters, see Exemption 1, Homeland Security-Related Information, above, and Exemption 2, Homeland Security-Related Information, above.)

      In addition to all such matters of federal law enforcement, Exemption 7 also applies to records compiled to enforce state law, (36) and even foreign law. (37) There is no requirement that the matter culminate in actual administrative, civil, or criminal enforcement. (38) However, if the agency lacks the authority to pursue a particular law enforcement matter, Exemption 7 protection may not be afforded. (39)

      Additionally, “[b]ackground security investigations by governmental units which have authority to conduct such functions” (40) have been held by most courts to meet the threshold tests under the succeeding formulations of Exemption 7. (41)Personnel investigations of government employees also are compiled for law enforcement purposes if they focus on “specific and potentially unlawful activity by particular employees” of a civil or criminal nature. (42) By contrast, “an agency’s general monitoring of its own employees to ensure compliance with the agency’s statutory mandate and regulations” does not satisfy Exemption 7’s threshold requirement. (43)


      Nevertheless, agencies should be mindful that while the FOIA’s policy goals strongly support protecting intelligence information as part of the preventative law enforcement mission under Exemption 7, (84) courts may require some showing of a rational nexus between such activities and an agency’s law enforcement functions. (85) Accordingly, agencies should carefully examine their law enforcement purposes in determining that a “sound legal basis” exists for applying Exemption 7 and gaining its broad protections under the six subparts discussed below. (86) And while agencies must establish this “connection” between their activities and their institutional mandates in general, they can be mindful that the courts have properly given deference to agency expertise in this area — particularly in post-9/11 judicial decisions, which repeatedly advert to the tragic events of that day and to how “American life [has] changed drastically and dramatically.” (87)

      1. 5 U.S.C. § 552(b)(7) (2000).

      2. Pub. L. No. 90-23, 81 Stat. 54, 55 (1967) (subsequently amended).

      3. See, e.g., Weisberg v. United States Dep’t of Justice, 489 F.2d 1195, 1198-1202 (D.C. Cir. 1973).

      4. Pub. L. No. 93-502, 88 Stat. 1561, 1563 (1974) (subsequently amended).

      5. See FBI v. Abramson, 456 U.S. 615, 622 (1982).

      6. Freedom of Information Reform Act of 1986, Pub. L. No. 99-570, § 1802, 100 Stat. 3207, 3207-48; see United States Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 756 n.9 (1989) (recognizing that the shift from “would constitute” standard to “could reasonably be expected to constitute” standard “represents a congressional effort to ease considerably a Federal law enforcement agency’s burden in invoking [Exemption 7]”); Tax Analysts v. IRS, 294 F.3d 71, 79 (D.C. Cir. 2002) (explaining that 1986 FOIA amendments changed threshold for Exemption 7 to delete “any requirement” that information be investigatory and that exemption therefore can be applied more widely); Hopkinson v. Shillinger, 866 F.2d 1185, 1222 n.27 (10th Cir. 1989) (“The 1986 amendment[s] broadened the scope of exemption 7’s threshold requirement . . . .”); North v. Walsh, 881 F.2d 1088, 1098 n.14 (D.C. Cir. 1989) (stating that Congress in 1986 “changed the threshold requirement for withholding information under exemption 7” so that “it now applies more broadly”); Wash. Post Co. v. United States Dep’t of Justice, No. 84-3581, 1987 U.S. Dist. LEXIS 14936, at *26 (D.D.C. Sept. 25, 1987) (magistrate’s recommendation) (noting that an “[a]gency’s burden of proof in this threshold test has been lightened considerably”), adopted (D.D.C. Dec. 15, 1987), rev’d in part on other grounds & remanded, 863 F.2d 96 (D.C. Cir. 1988).

      7. § 1802, 100 Stat. at 3207-48; see also Tax Analysts, 294 F.3d at 79 (emphasizing that the “legislative history makes it clear that Congress intended the amended exemption to protect both investigatory and non-investigatory materials, including law enforcement manuals and the like” (citing S. Rep. No. 98-221, at 23 (1983))).

      8. Id.; see Attorney General’s Memorandum on the 1986 Amendments to the Freedom of Information Act 9-13 (Dec. 1987) [hereinafter Attorney General’s 1986 Amendments Memorandum]; cf. NARA v. Favish, 124 S. Ct. 1570, 1579 (2004) (evincing the Supreme Court’s reliance on “the Attorney General’s consistent interpretation of” the FOIA in successive such Attorney General memoranda).

      9. Attorney General’s 1986 Amendments Memorandum at 5.

      10. S. Rep. No. 98-221, at 23 (1983).

      11. See id.

      12. See id.; Abramson, 456 U.S. at 630-32; see also Living Rivers, Inc. v. United States Bureau of Reclamation, 272 F. Supp. 1313, 1319 (D. Utah 2003) (finding that records created to protect dams from terrorism satisfy Exemptions 7’s threshold, and reasoning that “the context in which an agency has currently compiled a document . . . determines whether it is ‘compiled for law enforcement purposes'” (quoting John Doe Agency v. John Doe Corp., 493 U.S. 146, 153-54 (1989))); Hogan v. Huff, No. 00 Civ. 6753, 2002 WL 1359722, at *11 (S.D.N.Y. June 21, 2002) (declaring that “[d]ue to the nature of the origin” of documents used to determine a target’s “status as a potential unregistered agent for the Cuban government, the documents in question meet the requirement of being gathered for law enforcement purposes”); Ctr. to Prevent Handgun Violence v. United States Dep’t of the Treasury, 981 F. Supp. 20, 22-23 (D.D.C. 1997) (finding that because reports of gun sales are “starting points for investigations of illegal gun trafficking,” such reports are “clearly law enforcement records”); cf. Avondale Indus. v. NLRB, 90 F.3d 955, 962 (5th Cir. 1996) (finding no evidence in the requested record or in case law that union “voting lists were, in any way, compiled for a law enforcement purpose”).

      13. 456 U.S. at 626.

      14. See id. at 631-32 (“We hold that information initially contained in a record made for law enforcement purposes continues to meet the threshold requirements of Exemption 7 where that recorded information is reproduced or summarized in a new document for a non-law-enforcement purpose.”); Lesar v. United States Dep’t of Justice, 636 F.2d 472, 487 (D.C. Cir. 1980) (holding that documents from review of previous FBI surveillance meet threshold); see also Assassination Archives & Research Ctr. v. CIA, 903 F. Supp. 131, 132-33 (D.D.C. 1995) (finding that information from criminal investigations recompiled into administrative file to assist FBI in responding to Senate committee hearings “certainly satisfies” threshold requirement), dismissed without prejudice, No. 94-0655 (D.D.C. May 31, 1996); Exner v. United States Dep’t of Justice, 902 F. Supp. 240, 242 & n.3 (D.D.C. 1995) (protecting law enforcement document even if copy is maintained in non-law enforcement file), appeal dismissed, No. 95-5411, 1997 WL 68352 (D.C. Cir. Jan. 15, 1997). But cf. Rosenfeld v. United States Dep’t of Justice, 57 F.3d 803, 811 (9th Cir. 1995) (affirming district court’s refusal to apply Abramson principle to documents originally compiled for law enforcement purposes but “channelized” into non-law enforcement files when principle raised as defense for first time in motion for reconsideration).

      15. Ctr. for Nat’l Sec. Studies v. CIA, 577 F. Supp. 584, 590 (D.D.C. 1983) (applying Abramson to hold that duplicate copy of congressional record maintained in agency files is not an “agency record”); see, e.g., Ctr. for Nat’l Sec. Studies v. United States Dep’t of Justice, 331 F.3d 918, 926 (D.C. Cir. 2003) (explaining that although the requested documents are of a type that “have traditionally been public . . . [a]s compiled, they constitute a comprehensive diagram of the law enforcement investigation” and thus are “[c]learly” compiled for law enforcement purposes), cert. denied, 124 S. Ct. 1041 (2004); Ponder v. Reno, No. 98-3097, slip op. at 4-5 (D.D.C. Jan. 22, 2001) (concluding that “the agency’s purpose in compiling the records, not their ultimate use of the documents, determines if they meet the Exemption 7 threshold”); Exner, 902 F. Supp. at 242 n.3 (explaining that documents compiled in course of FBI investigation into “underworld/criminal activities” involving federal antiracketeering statutes “clearly constitute records or information compiled for law enforcement purposes” even if “a copy of the documents might also be found in a non-law enforcement file”); ISC Group v. DOD, No. 88-631, 1989 WL 168858, at *5 (D.D.C. May 22, 1989) (failing to protect the investigatory report prepared by a private company expressly for the agency’s criminal investigation pursuant to Exemption 7 “would elevate form over substance and frustrate the purpose of the exemption”); cf. In re Sealed Case, 856 F.2d 268, 271 (D.C. Cir. 1988) (explaining that law enforcement privilege protects testimony about contents of files which would themselves be protected, because public interest in safeguarding ongoing investigations is identical in both situations); Weinstein v. HHS, 977 F. Supp. 41, 45 (D.D.C. 1997) (applying Abramson to protect sensitive information under Exemption 5).

      16. See Attorney General’s 1986 Amendments Memorandum at 6.

      17. See id.

      18. Compare, e.g., Sears, Roebuck & Co. v. GSA, 509 F.2d 527, 529-30 (D.C. Cir. 1974) (deciding that records submitted for mere monitoring of employment discrimination are not “investigatory”), with Ctr. for Nat’l Policy Review on Race & Urban Issues v. Weinberger, 502 F.2d 370, 373 (D.C. Cir. 1974) (ruling that records of agency review of public schools suspected of discriminatory practices are “investigatory”).

      19. Compare, e.g., Gregory v. FDIC, 470 F. Supp. 1329, 1334 (D.D.C. 1979) (finding that bank examination report “typifies routine oversight” and thus is not “investigatory”), rev’d on other grounds, 631 F.2d 896 (D.C. Cir. 1980), with Copus v. Rougeau, 504 F. Supp. 534, 538 (D.D.C. 1980) (holding that compliance review forecast report is “clearly” investigative record).

      20. See, e.g., Rural Hous. Alliance v. USDA, 498 F.2d 73, 81 & n.47 (D.C. Cir. 1974).

      21. See Sladek v. Bensinger, 605 F.2d 899, 903 (5th Cir. 1979) (holding Exemption 7 inapplicable to DEA manual that “was not compiled in the course of a specific investigation”); Cox v. United States Dep’t of Justice, 576 F.2d 1302, 1310 (8th Cir. 1978) (same).

      22. See Attorney General’s 1986 Amendments Memorandum at 7.

      23. Id.

      24. See Boyd v. DEA, No. 01-0524, slip op. at 7-8 (D.D.C. Mar. 8, 2002) (finding that agency could withhold highly sensitive research analysis in intelligence report pursuant to Exemption 7(E)); Tran v. United States Dep’t of Justice, No. 01-0238, 2001 WL 1692570, at *3 (D.D.C. Nov. 20, 2001) (concluding that INS form was properly withheld under Exemption 7(E) because it would reveal law enforcement techniques); see, e.g., Allnutt v. Dep’t of Justice, 99 F. Supp. 2d 673, 680 (D. Md. 2000) (stating that the Tax Division records at issue “must generally arise during the course of an investigation” and “must involve the detection or punishment of violations of law” to satisfy the Exemption 7 threshold), renewed motion for summary judgment granted, No. Y-98-901, 2000 WL 852455, at **20-21 (D. Md. Oct. 23, 2000), aff’d sub nom. Allnutt v. Handler, 8 Fed. Appx. 225 (4th Cir. 2001); Morales Cozier v. FBI, No. 1:99-0312, slip op. at 15 (N.D. Ga. Sept. 25, 2000) (finding that records generated by invitation to official of Cuban government to speak in United States were compiled for law enforcement purposes).

      25. See, e.g., Sladek, 605 F.2d at 903; Cox, 576 F.2d at 1310.

      26. See Attorney General’s 1986 Amendments Memorandum at 7; see, e.g., Tax Analysts, 294 F.3d at 79 (explaining that “the legislative history makes it clear that Congress intended the amended exemption to protect both investigatory and non-investigatory materials, including law enforcement manuals and the like”); PHE, Inc. v. Dep’t of Justice, 983 F.2d 248, 249, 251 (D.C. Cir. 1993) (holding portions of FBI’s Manual of Investigative Operations and Guidelines properly withheld pursuant to Exemption 7(E));Ctr. for Nat’l Sec. Studies v. INS, No. 87-2068, 1990 WL 236133, at *6 (D.D.C. Dec. 19, 1990) (reiterating that documents relating to INS’s law enforcement procedures meet threshold requirement as “purpose in preparing these documents relat[es] to legitimate concerns that federal immigration laws have been or may be violated”). But see Maydak, 254 F. Supp. 2d 23, 38 (D.D.C. 2003) (finding that Bureau of Prisons failed to satisfy law enforcement threshold for records in its Inmate Central Records System, which it described as concerning day-to-day activities and events occurring during inmates’ confinement); Cowsen-El v. United States Dep’t of Justice, 826 F. Supp. 532, 533 (D.D.C. 1992) (explaining that threshold is not met by Bureau of Prisons guidelines covering how prison officials should count and inspect prisoners).

      27. See Rural Hous., 498 F.2d at 80-82 (finding that threshold of Exemption 7 met if investigation focuses directly on specific illegal acts which could result in civil or criminal penalties); Southam News v. INS, 674 F. Supp. 881, 887 (D.D.C. 1987) (finding that, based upon pre-1986 language, INS Lookout Book used to assist in exclusion of inadmissible aliens satisfies threshold requirement); U.S. News & World Report v. Dep’t of the Treasury, No. 84-2303, 1986 U.S. Dist. LEXIS 27634, at *5 (D.D.C. Mar. 26, 1986) (reasoning that records pertaining to acquisition of two armored limousines for President meet threshold test when activities involved investigation of how best to safeguard President); Nader v. ICC, No. 82-1037, slip op. at 10-11 (D.D.C. Nov. 23, 1983) (deciding that disbarment proceedings meet Exemption 7 threshold because they are “quasi-criminal” in nature).

      28. See, e.g., Rugiero v. United States Dep’t of Justice, 257 F.3d 534, 550 (6th Cir. 2001) (explaining that the “Court has adopted a per se rule” that applies not only to criminal enforcement actions, but to “records compiled for civil enforcement purposes as well”), cert. denied, 534 U.S. 1134 (2002); Detroit Free Press, Inc. v. Dep’t of Justice, 73 F.3d 93, 96 (6th Cir. 1996) (recognizing that United States Marshals Service’s mug shots of federal indictees were compiled for law enforcement purposes); Koch v. USPS, No. 93-1487, 1993 WL 394629, at *1 (8th Cir. Oct. 8, 1993) (determining that report initiated by allegation that postal service employee threatened to bring grenade to work was compiled for law enforcement purposes); Rural Hous., 498 F.2d at 81 & n.46 (holding that the “character of the statute violated would rarely make a material distinction, because the law enforcement purposes . . . include both civil and criminal purposes”); Williams v. IRS, 479 F.2d 317, 318 (3d Cir. 1973) (affirming that data compiled in connection with audit of individual’s income tax liability was compiled for law enforcement purposes); Black & Decker Corp. v. United States, No. 02-2070, 2004 WL 500847, at *3 (D. Md. Feb. 19, 2004) (stating that “law enforcement” includes both civil and criminal matters); Judicial Watch, Inc. v. Rossotti, No. 01-2672, U.S. Dist. 2002 LEXIS 25213, at **19-20 (D. Md. Dec. 16, 2002) (ruling that letters written by citizens concerned about plaintiff’s compliance with IRS laws were compiled for “civil law enforcement purposes”), aff’d sub nom. Judicial Watch, Inc. v. United States, 84 Fed. Appx. 335 (4th Cir. 2004), petition for cert. filed, 72 U.S.L.W. 3644 (U.S. Apr. 5, 2004) (No. 03-1389); Schiller v. INS, 205 F. Supp. 2d 648, 659 (W.D. Tex. 2002) (stating that “[l]aw enforcement for purposes of the FOIA is not limited strictly to criminal investigations but also includes within its scope civil investigations” (citing Rugiero, 257 F.3d at 550)); Baltimore Sun v. United States Marshals Serv., 131 F. Supp. 2d 725, 728 n.2 (D. Md. 2001) (reasoning that United States Marshals Service forfeiture records satisfy threshold because agency is responsible for “enforcement of civil and criminal seizure and forfeiture laws”); Youngblood v. Comm’r of Internal Revenue, No. 2:99-9253, 2000 WL 852449, at *10 (C.D. Cal. Mar. 7, 2000) (holding that IRS “investigations or proceedings in the civil or criminal context” satisfy the threshold); Abraham & Rose, P.L.C. v. United States, 36 F. Supp. 2d 955, 956 (E.D. Mich. 1998) (affirming that records compiled by IRS to collect outstanding tax debts satisfy Exemption 7 threshold); Ligorner v. Reno, 2 F. Supp. 2d 400, 404 (S.D.N.Y. 1998) (holding that letter used during Office of Professional Responsibility investigation into allegations of misconduct by Department of Justice attorneys was compiled for law enforcement purposes). But see Jefferson v. Dep’t of Justice, 284 F.3d 172, 179 (D.C. Cir. 2002) (declining to find that all Department of Justice Office of Professional Responsibility records regarding a Assistant United States Attorney are law enforcement records, particularly because the “Department’s regulations describe OPR as a mixed-function agency with responsibilities that embrace not only investigations of violations of law and breaches of professional standards that may result in civil liability, . . . but breaches of internal Department guidelines that may lead to disciplinary proceedings . . . of such non-law violations”); Allnutt, 99 F. Supp. 2d at 680 (holding that “the Court is unable to understand how the bankruptcy proceeding that generated the record qualifies as a law enforcement activity”).

      29. See, e.g., Beard v. Espy, No. 94-16748, 1995 WL 792071, at *1 (9th Cir. Dec. 11,1995) (protecting complaint letter and notes compiled during criminal investigation involving USDA loans); Ortiz v. HHS, 70 F.3d 729, 730 (2d Cir. 1995) (holding that unsigned, unsolicited letter used to launch criminal investigation by Social Security Administration meets threshold for law enforcement purposes, although no charges filed against target); Solar Sources v. United States, No. 96-0772, slip op. at 5 (S.D. Ind. Mar. 10, 1997) (holding that criminal antitrust investigation of explosives industry was “indisputably” compiled for law enforcement purposes), aff’d, 142 F.3d 1033 (7th Cir. 1998); Hoffman v. Brown, No. 1:96-53, slip op. at 4 (W.D.N.C. Nov. 26, 1996) (finding that information compiled by VA police canvassing plaintiff’s neighbors regarding “alleged criminal activity of plaintiff at home” meets threshold), aff’d, 145 F.3d 1324 (4th Cir. 1998) (unpublished table decision); Mavadia v. Caplinger, No. 95-3542, 1996 WL 592742, at *2 (E.D. La. Oct. 11, 1996) (finding that both civil and criminal investigations of possible violations of immigration laws satisfy threshold); Cappabianca v. Comm’r, United States Customs Serv., 847 F. Supp. 1558, 1565 (M.D. Fla. 1994) (stating that records of internal investigation focusing specifically on alleged acts that could result in civil or criminal sanctions were compiled for law enforcement purposes); Stone v. Def. Investigative Serv., 816 F. Supp. 782, 787 (D.D.C. 1993) (protecting foreign counterintelligence investigation and investigation into possible violation of federal statute), appeal dismissed for failure to prosecute, No. 93-5178 (D.C. Cir. Mar. 11, 1994); Buffalo Evening News, Inc. v. United States Border Patrol, 791 F. Supp. 386, 394 (W.D.N.Y. 1992) (reasoning that USBP form meets threshold because it is generated in investigations of violations of federal immigration law).

      30. See, e.g., Ctr. for Nat’l Policy Review, 502 F.2d at 373 (holding that administrative determination has “salient characteristics of ‘law enforcement’ contemplated” by Exemption 7 threshold requirement); Schiller, 205 F. Supp. 2d at 559 (stating that “law enforcement” for purposes of FOIA includes regulatory proceedings (citing Rugiero, 257 F.3d at 550)); Hidalgo v. Bureau of Prisons, No. 00-1229, slip op. at 3 (D.D.C. June 6, 2001) (determining that records compiled during investigation of prisoner for violating institutional rules and regulations satisfy threshold), summary affirmance granted, No. 01-5257, 2002 WL 1997999 (D.C. Cir. Aug. 29, 2002); McErlean v. Dep’t of Justice, No. 97-7831, 1999 WL 791680, at *8 (S.D.N.Y. Sept. 30, 1999) (stating that “it is well-settled that documents compiled by the INS in connection with the administrative proceedings authorized by the Immigration and Naturalization Act are documents compiled for ‘law enforcement purposes'”); Gen. Elec. Co. v. EPA, 18 F. Supp. 2d 138, 143-44 (D. Mass. 1998) (reasoning that EPA decision to classify a site as contaminated “is not an enforcement action at all but rather ordinary informal rulemaking,” which would ordinarily not meet Exemption 7 threshold, though in this case it did because “it is entirely reasonable for the agency to anticipate that enforcement proceedings are in the offing”); Johnson v. DEA, No. 97-2231, 1998 U.S. Dist. LEXIS 9802, at *9 (D.D.C. June 25, 1998) (reiterating that “law being enforced may be . . . regulatory”); Straughter v. HHS, No. 94-0567, slip op. at 4 (S.D. W. Va. Mar. 31, 1995) (magistrate’s recommendation) (finding threshold met by records compiled by HHS’s Office of Civil Rights in course of investigation of handicap discrimination as violation of Rehabilitation Act),adopted (S.D. W. Va. Apr. 17, 1995); Kay v. FCC, 867 F. Supp. 11, 16-18 (D.D.C. 1994) (explaining that FCC’s statutory authority to revoke licenses or deny license applications is qualifying law enforcement purpose); Aircraft Gear Corp. v. NLRB, No. 92-C-6023, slip op. at 10 (N.D. Ill. Mar. 14, 1994) (stating that documents created in connection with NLRB unfair labor practices cases and union representation case meet threshold); Ehringhaus v. FTC, 525 F. Supp. 21, 22-23 (D.D.C. 1980) (deciding that documents prepared as part of FTC investigation into advertising practices of cigarette manufacturers meet threshold).

      31. See Ctr. for Nat’l Sec. Studies, 331 F.3d at 926 (finding law enforcement threshold met by records compiled in course of investigation into “breach of this nation’s security”); Living Rivers, 272 F. Supp. 2d at 1321 (finding that terrorists could make use of downstream flooding projections from agency’s dam “inundation maps,” and obliquely referring to “a dam failure as [seeking] a ‘weapon of mass destruction'”); Coastal Delivery Corp. v. United States Customs Serv., 272 F. Supp. 2d 958, 964-65 (C.D. Cal. 2003) (ruling that terrorists could use information to avoid detection and to direct “merchandise to vulnerable ports”), reconsideration denied, No. 02-3838, 2002 WL 21507775 (C.D. Cal. June 13, 2003), appeal dismissed voluntarily, No. 03-55833 (9th Cir. Aug. 26, 2003); see also Pratt v. Webster, 673 F.2d 408, 421 (D.C. Cir. 1982) (explaining that “to pass the FOIA Exemption 7 threshold,” agencies must establish that their activities are based on a concern that “federal laws have been or may be violated or that national security may be breached” (emphasis added)).

      32. 331 F.3d at 926, 929.

      33. See id. at 929 (“While the name of any individual detainee may appear innocuous or trivial, it could be of great use to al Qaeda in plotting future terrorist attacks or intimidating witnesses in the present investigation.”); Living Rivers, 272 F. Supp. 2d at 1321 (reasoning that terrorists could use “inundation maps” to aid in carrying out attacks on dams both in choosing potential targets and in selecting particular, more vulnerable features of certain dams); Coastal Delivery, 272 F. Supp. 2d at 964, 966 (explaining that information that appears to be “innocuous on its own” could reasonably be used by “potential terrorists and smugglers” to circumvent law enforcement procedures); see also FOIA Post, “FOIA Officers Conference Held on Homeland Security” (posted 7/3/03) (discussing recent case law developments, and advising on the “increasing significance of both information sharing and information safeguarding in connection with sensitive homeland security information”); cf. FOIA Post, “Guidance on Homeland Security Information Issued” (posted 3/21/02) (stressing need for safeguarding not only classified records but also “sensitive information related to America’s homeland security that might not meet” classification standards).

      34. See Ctr. for Nat’l Sec. Studies, 331 F.3d at 926, 928 (explaining that “America faces an enemy” and that the terrorism investigation into this “heinous violation” is one of the Department of Justice’s chief law enforcement duties); Living Rivers, 272 F. Supp. 2d at 1320 (concluding that “inundation maps” were compiled for law enforcement purposes because they are used for homeland security as part of the Department of the Interior’s “Emergency Action Plans and to protect and alert potentially threatened people”); see also Pratt, 673 F.2d at 410, 422-23 (finding that documents gathered during the investigation of the Black Panther Party, “an allegedly subversive and violent domestic organization,” met law enforcement threshold because investigation involved “prevention of violence” on American soil); Ayyad v. United States Dep’t of Justice, No. 00-960, 2002 WL 654133, at **8-12 (S.D.N.Y. Apr. 17, 2002) (ruling that the information satisfies Exemption 7’s threshold, because it “is clearly related to law enforcement proceedings and was compiled by the FBI to investigate” the 1993 World Trade Center bombing); Judicial Watch, Inc. v. Reno, No. 00-0723, slip op. at 21 (D.D.C. Mar. 30, 2001) (stating that “information related to an investigation of possible terrorist threats . . . is sufficient to meet” the threshold); Morales Cozier, No. 99-0312, slip op. at 14-15 (N.D. Ga. Sept. 25, 2000) (explaining that the law enforcement threshold is met by an investigation of activities that “could have presented an interference with United States foreign policy or national security”); cf. Jabara v. Webster, 691 F.2d 272, 279-80 (6th Cir. 1982) (clarifying, in a Privacy Act case, that an investigation encompassing the exercise of First Amendment rights is not barred if it is relevant to an authorized criminal, civil, administrative, or intelligence investigation).

      35. 331 F.3d at 932; see also Zadvydas v. Davis, 533 U.S. 678, 696 (2001) (noting that circumstances of “terrorism” can warrant heightened deference) (non-FOIA case); Dep’t of the Navy v. Egan, 484 U.S. 518, 530 (1988) (stating that courts are reluctant to intrude into “national security affairs”) (non-FOIA case); cf. North Jersey Media Group v. Ashcroft, 308 F.3d 198, 200-03 (3d Cir. 2002) (holding that closure of “special interest” deportation hearings involving detainees with alleged connections to terrorism does not violate First Amendment when “open hearings might impair national security” by disclosing potentially sensitive information) (non-FOIA case), cert. denied, 123 S. Ct. 2215 (2003).

      36. See Hopkinson, 866 F.2d at 1222 n.27 (holding that Exemption 7 applies “to FBI laboratory tests conducted at the request of local law enforcement authorities”); Franklin v. DEA, No. 97-1225, slip op. at 7 (S.D. Fla. June 26, 1998) (stating that documents compiled for “federal or state” law enforcement purposes meet threshold); Code v. FBI, No. 95-1892, 1997 WL 150070, at *5 (D.D.C. Mar. 26, 1997) (finding that documents compiled in connection with FBI’s efforts to assist local police in homicide investigations meet threshold); Butler, 888 F. Supp. at 180, 182 (finding that Air Force personnel background report — requested by local law enforcement agency for its investigation into murder — was compiled for law enforcement purposes); Kuffel v. Bureau of Prisons, 882 F. Supp. 1116, 1124 (D.D.C. 1995) (ruling that information from state law enforcement agency investigating various state crimes qualifies); Wojtczak v. United States Dep’t of Justice, 548 F. Supp. 143, 146-48 (E.D. Pa. 1982) (“This Court must therefore interpret the statute as written and concludes that Exemption 7 applies to all law enforcement records, federal, state, or local, that lie within the possession of the federal government”); see also Shaw v. FBI, 749 F.2d 58, 64 (D.C. Cir. 1984) (explaining that authorized federal investigation into commission of state crime constitutes valid criminal law enforcement investigation, which qualifies confidential source-provided information for protection under second half of Exemption 7(D)); Palacio v. United States Dep’t of Justice, No. 00-1564, 2002 U.S. Dist. LEXIS 2198, at *16 (D.D.C. Feb. 11, 2002) (explaining that records of investigation conducted by city task force were “created or compiled” for law enforcement purposes and thus satisfy threshold), summary affirmance granted, No. 02-5247, 2003 U.S. App. LEXIS 1804 (D.C. Cir. Jan. 31, 2003); Rojem v. United States Dep’t of Justice, 775 F. Supp. 6, 10 (D.D.C. 1991) (determining that material provided to FBI by state law enforcement agency for assistance in that state agency’s criminal investigation is “compiled for law enforcement purposes”), appeal dismissed for failure to timely file, No. 92-5088 (D.C. Cir. Nov. 4, 1992).

      37. See, e.g., Bevis v. Dep’t of State, 801 F.2d 1386, 1388 (D.C. Cir. 1986) (finding no distinction between foreign and domestic enforcement purposes in language of statute); Zevallos-Gonzalez v. DEA, No. 97-1720, slip op. at 9 (D.D.C. Sept. 25, 2000) (concluding that documents generated during an investigation conducted under the “authority of Peruvian laws and under the authority granted to the DEA under the Controlled Substance Act to pursue the agency’s law enforcement obligations under both United States statutes and international agreements . . . were compiled for law enforcement purposes”); Schwarz v. United States Dep’t of Justice, No. 95-2162, slip op. at 6 (D.D.C. May 31, 1996) (stating that information compiled by INTERPOL at behest of foreign government meets requirements), summary affirmance granted, No. 96-5183 (D.C. Cir. Oct. 23, 1996); Donovan v. FBI, 579 F. Supp. 1111, 1119-20 (S.D.N.Y. 1983) (stating that an FBI investigation undertaken and laboratory tests performed in support of a foreign government’s efforts to identify and prosecute perpetrators of crimes satisfy threshold, and reasoning that “refusing to apply Exemption 7 to foreign law enforcement might have the practical effect of interfering with cooperation and information sharing”), vacated on other grounds on motion for reconsideration, 579 F. Supp. 1124 (S.D.N.Y.), appeal dismissed as moot, 751 F.2d 368 (2d Cir. 1984); see also FOIA Update, Vol. V, No. 2, at 6-7 (reasoning that records compiled for “nonfederal” investigations satisfy threshold, because “Exemption 7’s threshold requirement . . . makes no reference to federal investigations, nor can any such limitation logically be inferred”).

      38. See, e.g., Ponder, No. 98-3097, slip op. at 5 (D.D.C. Jan. 22, 2001) (ruling that records were compiled for law enforcement purpose despite fact that subject was never prosecuted); Goldstein v. Office of Indep. Counsel, No. 87-2028, 1999 WL 570862, at **8-9 (D.D.C. July 29, 1999) (magistrate’s recommendation) (determining that investigation of perennial presidential candidate Lyndon LaRouche for possible criminal violations was for legitimate law enforcement purpose even if that investigation “went nowhere”).

      39. See, e.g., Rosenfeld, 57 F.3d at 808-09 (finding no law enforcement purpose when “documents all support a conclusion that . . . any asserted purpose for compiling these documents was pretextual”); Weissman v. CIA, 565 F.2d 692, 696 (D.C. Cir. 1977) (ruling that the CIA’s “full background check within the United States of a citizen who never had any relationship with the CIA is not authorized and the law enforcement exemption is accordingly unavailable”); Taylor v. United States Dep’t of Justice, 257 F. Supp. 2d 101, 108 (D.D.C. 2003) (stating that investigations must be “‘within the agency’s law enforcement authority'” (quoting Whittle v. Moschella, 756 F. Supp. 589, 593 (D.D.C. 1991))), reconsideration denied, 268 F. Supp. 2d 34 (D.D.C. 2003), appeal dismissed for failure to prosecute, No. 03-5111, 2003 WL 2205968 (D.C. Cir. Aug. 19, 2003); Enviro Tech Int’l v. EPA, No. 02 C 4650, slip op. at 14 (N.D. Ill. Mar. 11, 2003) (describing Exemption 7 as having “hook” that can in some cases restrict its use to “only those documents relating to specifically authorized agency activities”); Youngblood, No. 2:99-9253, 2000 WL 852449, at *10 (concluding that the “authority bestowed upon IRS by Congress to enforce the internal revenue laws . . . is an extraordinarily broad mandate . . . [which is] analogous to that of a grand jury”); Miscavige v. IRS, No. 91-3721, slip op. at 2, 5 (C.D. Cal. Dec. 9, 1992) (finding no law enforcement purpose for post-1986 documents because IRS investigation concluded in 1985); cf. Kuzma v. IRS, 775 F.2d 66, 69 (2d Cir. 1985) (declaring that unauthorized or illegal investigative tactics may not be shielded from public by use of FOIA exemptions). But cf. Pratt, 673 F.2d at 422-23 (explaining that “Exemption 7 refers to purposes rather than methods” and that “[w]hile many of the FBI’s goals and methods in its COINTELPRO activities against the [Black Panther Party] give us serious pause,” such as the goal to prevent “militant black nationalist groups and leaders from gaining respectability by discrediting them,” these questionable methods do not defeat the exemption’s coverage when law enforcement is the primary purpose because, “[f]rom the record before us, we cannot conclude that [the FBI’s concern about violence] was implausible or irrational”); Hrones v. CIA, 685 F.2d 13, 19 (1st Cir. 1982) (legality of agency’s actions in national security investigation falls outside scope of judicial review in FOIA action).

      40. S. Conf. Rep. No. 93-1200, at 12 (1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6291.

      41. See, e.g., Mittleman v. OPM, 76 F.3d 1240, 1241-43 (D.C. Cir. 1996) (OPM background investigation); Rosenfeld, 57 F.3d at 809 (“FBI government appointment investigations”); Pontecorvo v. FBI, No. 00-1511, slip op. at 37-38 (D.D.C. Sept. 30, 2001) (background investigation of potential employee); Melius v. Nat’l Indian Gaming Comm’n, No. 92-2210, 1999 U.S. Dist. LEXIS 17537, at **6, 15 (D.D.C. Nov. 3, 1999) (“suitability investigations” for gaming contracts); Assassination Archives, 903 F. Supp. at 132 (FBI “background investigations”); Bostic v. FBI, No. 1:94 CV 71, slip op. at 2, 11 (W.D. Mich. Dec. 16, 1994) (FBI pre-employment investigation); Doe v. United States Dep’t of Justice, 790 F. Supp. 17, 20-21 (D.D.C. 1992) (background investigation of individual conditionally offered employment as attorney); Miller v. United States, 630 F. Supp. 347, 349 (E.D.N.Y. 1986) (USIA background-security investigation of federal job applicant); Koch v. Dep’t of Justice, 376 F. Supp. 313, 315 (D.D.C. 1974) (background investigations fall within Exemption 7 because they involve determinations as to whether applicants engaged in criminal conduct that would disqualify them for federal employment); see also FOIA Update, Vol. VI, No. 4, at 6.

      42. Stern v. FBI, 737 F.2d 84, 89 (D.C. Cir. 1984); see also Perlman v. United States Dep’t of Justice, 312 F.3d 100, 103, 105 (2d Cir. 2002) (discussing allegations of preferential treatment and undue access and influence in INS Investor Visa Program by former INS general counsel, and finding that records compiled during investigation into allegations satisfy Exemption 7’s threshold, because such acts could subject him to criminal or civil penalties), cert. granted, vacated & remanded, 72 U.S.L.W. 3632 (U.S. Apr. 5, 2004) (No. 02-1270); Ford v. West, No. 97-1342, 1998 WL 317561, at *4 (10th Cir. June 12, 1998) (finding that investigation into alleged racial harassment meets threshold); Kimberlin v. Dep’t of Justice, 139 F.3d 944, 947-48 (D.C. Cir. 1998) (concluding that an investigation “conducted in response to and focused upon a specific, potentially illegal release of information by a particular, identified official” satisfies the threshold); Strang v. Arms Control & Disarmament Agency, 864 F.2d 859, 862 (D.C. Cir. 1989) (characterizing agency investigation into employee violation of national security laws as law enforcement); Edmonds v. FBI, 272 F. Supp. 2d 35, 42, 54 (D.D.C. 2003) (ruling that the agency has met the law enforcement threshold for material compiled during investigations into plaintiff’s allegations of “serious problems, misconduct, security lapses, a breakdown in quality, and gross incompetence” in the FBI’s translation unit (quoting plaintiff’s brief)); Lewis v. United States, No. 02-3249, slip op. at 1, 6 (C.D. Cal. June 2, 2003) (finding that investigation of alleged unauthorized collection action by IRS employees was for law enforcement purposes); Mueller v. Dep’t of the Air Force, 63 F. Supp. 2d 738, 742 (E.D. Va. 1999) (holding that the investigation into prosecutorial misconduct was for law enforcement purposes because “‘an agency investigation of its own employees is for law enforcement purposes . . . if it focuses directly on specifically alleged illegal acts, illegal acts of a particular identified official, acts which could, if proved, result in civil or criminal sanctions'” (quoting Stern, 737 F.2d at 89)); Hayes v. United States Dep’t of Labor, No. 96-1149, 1998 U.S. Dist. LEXIS 14120, at **11-12 (S.D. Ala. June 10, 1998) (explaining that records of “internal agency investigations are considered to be compiled for ‘law enforcement purposes’ when the investigations focus on specifically alleged acts, which, if proved, could amount to violations of civil or criminal law”), adopted (S.D. Ala. Aug. 10, 1998); Ligorner, 2 F. Supp. 2d at 402-04 (finding threshold satisfied by investigation into allegations of misconduct by Justice Department attorneys); Lurie v. Dep’t of the Army, 970 F. Supp. 19, 36 (D.D.C. 1997) (explaining that threshold met because investigation focused directly on specifically alleged illegal acts of identified officials (citing Rural Hous., 498 F.2d at 81)), appeal dismissed voluntarily, No. 97-5248 (D.C. Cir. Oct. 22, 1997); Linn v. United States Dep’t of Justice, No. 92-1406, 1995 WL 631847, at *22 (D.D.C. Aug. 22, 1995) (“[D]ocuments compiled for purposes of internal discipline of employees are not compiled for law enforcement purposes . . . [b]ut such internal monitoring of employees may be ‘for law enforcement purposes’ if the focus of the investigation concerns acts that could result in civil or criminal sanctions.” (quoting Stern, 737 F.2d at 89)), appeal dismissed voluntarily, No. 97-5122 (D.C. Cir. July 14, 1997); Housley v. United States Dep’t of the Treasury, 697 F. Supp. 3, 5 (D.D.C. 1988) (reiterating that investigation concerning misconduct by special agent which, if proved, could have resulted in federal civil or criminal sanctions qualifies as law enforcement); cf. Favish, 124 S. Ct. at 1582 (recognizing realistically that “[a[llegations of government misconduct are ‘easy to allege and hard to disprove'” (quoting Crawford-El v. Britton, 523 U.S. 574, 585 (1998))); In re Dep’t of Investigation of N.Y., 856 F.2d 481, 485 (2d Cir. 1988) (explaining that the law enforcement privilege applies in the discovery context when the investigation served the “dual purposes of evaluating conduct in office and enforcing the criminal law”) (non-FOIA case).

      43. Stern, 737 F.2d at 89 (dictum) (reminding that “it is necessary to distinguish between those investigations conducted ‘for a law enforcement purpose’ and those in which an agency, acting as the employer, simply supervises its own employees”); see alsoJefferson, 284 F.3d at 177-78 (ruling that agencies must distinguish between records based on “allegations that could lead to civil or criminal sanctions” and records “maintained in the course of general oversight of government employees”); Patterson v. IRS, 56 F.3d 832, 837-38 (7th Cir. 1995) (holding that the “general citation to an entire body of statutes contained in the United States Code under the heading ‘Equal Employment Opportunity statutes'” does not establish a law enforcement purpose, and declaring that the agency must “‘distinguish between internal investigations conducted for law enforcement purposes and general agency monitoring'” (quoting Stern, 727 F.2d at 89)); Rural Hous., 498 F.2d at 81 (distinguishing between agency oversight of performance of employees and investigations focusing on specific illegal acts of employees); Wood v. FBI, No. 3:02cv2058, 2004 U.S. LEXIS 5525, at *34 (D. Conn. Mar. 31, 2004) (reiterating that “‘an investigation conducted by a federal agency for the purpose of determining whether to discipline employees for activity which does not constitute a violation of law is not for law enforcement purposes under Exemption 7′” (quoting Stern, 737 F.2d at 90)); Jefferson v. United States Dep’t of Justice, No. 01-1418, slip op. at 16 (D.D.C. Mar. 31, 2003) (finding that Office of Inspector General records concerning particular federal employee were not oversight records of internal agency monitoring, because they were compiled during investigation into her failure to comply with court order), motion for reconsideration granted on other grounds, No. 01-1418 (D.D.C. Nov. 14, 2003); Varville v. Rubin, No. 3:96CV00629, 1998 WL 681438, at *14 (D. Conn. Aug. 18, 1998) (explaining that the threshold was not met by a report discussing possible ethical violations and prohibited personnel practices because the inquiry “more closely resembles an employer supervising its employees than an investigation for law enforcement purposes”); Lurie, 970 F. Supp. at 36 (“The general internal monitoring by an agency of its own employees is not shielded from public scrutiny under Exemption 7, because ‘protection of all such internal monitoring under Exemption 7 would devastate FOIA.'” (quoting Stern, 737 F.2d at 89)); Fine v. United States Dep’t of Energy, 823 F. Supp. 888, 907-08 (D.N.M. 1993) (ruling that threshold met by agency with both administrative and law enforcement functions when documents were compiled during investigation of specific allegations and not as part of routine oversight); Cotton v. Adams, 798 F. Supp. 22, 25 (D.D.C. 1992) (holding that agency’s internal investigation of its own employees satisfies threshold only if it focuses directly on illegal acts that could result in criminal or civil sanctions; Greenpeace USA, Inc. v. EPA, 735 F. Supp. 13, 15 (D.D.C. 1990) (threshold was not met by internal investigation into whether employee complied with agency conflict-of-interest regulations). But cf. Nagel v. HEW, 725 F.2d 1438, 1441 (D.C. Cir. 1984) (holding that the “employer’s determination whether a federal employee is performing his job adequately constitutes an authorized law enforcement activity” within the meaning of subsection (e)(7) of the Privacy Act of 1974, 5 U.S.C. § 552a (2000)).


      87. North Jersey Media Group, 308 F.3d at 202-03 (discussing First Amendment rights, and recognizing that the “case arises in the wake of September 11, 2001, a day on which American life changed drastically and dramatically . . . . Since the primary national policy must be self-preservation, it seems elementary that, to the extent open deportation hearings might impair national security,” the special interest deportation hearings were properly closed); see Ctr. for Nat’l Sec. Studies, 331 F.3d at 926, 932 (referring to 9/11 terrorism as a “heinous violation,” and stating that “the courts must defer to the executive on [such] decisions of national security”); Coastal Delivery, 272 F. Supp. 2d at 960-61, 964 (pointing to the existence of “new anti-terrorism programs” in approving protection of the type of information released prior to 9/11, and stating that “plaintiff’s arguments that potential terrorists and smugglers could not and would not use the information” are simply “unpersuasive” in that context); see also, e.g., Edmonds, 272 F. Supp. at 55 (stating that the “deference that has historically been extended to the executive when it invokes FOIA Exemption 1” must be extended to Exemption 7 in the national security area); cf. Zadvydas, 533 U.S. at 696 (recognizing that terrorism can warrant “heightened deference”).

  11. DXer said

    The National Academies of Science is a federally charted corporation and has national citizenship, not citizenship of a particular state. See 36 U.S.C. Sec. 150301 et seq.; Speliotopoulous v. NAS, (D.D.C. 2002) As such, there is no diversity of citizenship and no diversity jurisdiction. There is jurisdiction in federal court, however, because of the federal question presented under FOIA and FACA.

  12. DXer said

    In past controversies over what would be disclosed, the issue of the requirements of the contract could be addressed because the contract was available for review in the public access file. In this case, NAS in violation of the FACA apparently has refused even to deposit the contract in the file. (see article below)

    As an example of the salutary benefit of compliance with FOIA, the FBI permitted the USAMRIID to produce a copy of the flask showing distribution of Ames by Bruce Ivins. The form indicated that it had been stored in 1425 as US Attorney Jeff Taylor had claimed in his press conference. Then someone from outside the government promptly produced a copy to me showing that before someone used white-out on the form, the form had indicated that it had been stored in 1412. Who altered the document in this all-important respect? The question would not have been raised had USAMRIID not complied with FOIA to at least that extent and at least produced that document (while withholding the other versions which reveal their claims at the first press conference to be a crock).

    The FBI likely does not want the same to occur in connection with Amerithrax. Under their procedure, the new experts not schooled in the matter (and volunteering their time), will be guided through the documents selectively provided to the conclusion the FBI has reached. They will not have the documents needed to discern any missteps in analysis. Judge Rakoff of course understands the difficulties associated with document production but has a day job.

    The NAS review policy lost all credibility the day that they linked to the public access file when all the while it was totally empty.

    “Diaz tries to reassure NAS over study on radiation sources,” Inside N.R.C., November 28, 2005
    Michael Knapik, Washington
    Pg. 8 Vol. 27 No. 24

    NRC Chairman Nils Diaz struck a conciliatory note in trying to defuse a burgeoning controversy between NRC and the National Academy of Sciences (NAS) over a congressionally mandated study on the use of radiation sources and their possible replacement. Congress called for the study in the 2005 Energy Policy Act.

    Diaz responded by saying that NRC “recognizes that in entering into an arrangement under which NAS will conduct a study under an NRC grant, NAS should not be subject to any actual management or control by the NRC. The NRC also recognizes its own responsibilities for safeguarding and maintaining the security of classified, safeguards, and other sensitive information.”

    NRC’s chairman said the agency believes differences “in details of the grant language” can be resolved “by accurately describing the processes and conditions under which both NAS and NRC can mutually satisfy their respective views and responsibilities.” Diaz said he looked forward to “expeditiously resolving this matter.” At press time Nov. 23, it was unclear whether NRC and NAS had reached any agreement on the grant award.

  13. DXer said

    Federation of American Scientists has uploaded this sample complaint for a Temporary Restraining Order and Preliminary Injunction:

    Click to access wmdfaca.pdf

    Privately, the FAS notes Public Citizen’s litigation prowess on the issue presented and recommends that a FOIA be sent to the FBI re documents provided the NAS so as to create a fuller record.

  14. DXer said

    Talk is cheap, huh? The NAS provides a link for requesting documents but then never even bothered to respond to Anonymous Scientist and specify a grounds for withholding.

    The NAS claims to be taking their lead from the Department of Justice when the US DOJ as part of its public relations states:

    United States Department of Justice Office of Information Policy Guidance:
    “President Obama’s FOIA Memorandum and Attorney General Holder’s FOIA Guidelines: Creating a “New Era of Open Government”

  15. DXer said

    Office of the Attorney General Washington, D.C. 20530
    March 19, 2009

    SUBJECT: The Freedom of Information Act (FOIA)

    The Freedom of Information Act (FOIA), 5 U.S.C. § 552, reflects our nation’s fundamental commitment to open government. This memorandum is meant to underscore that commitment and to ensure that it is realized in practice.

    A Presumption of Openness

    As President Obama instructed in his January 21 FOIA Memorandum, “The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails.” This presumption has two important implications.

    First, an agency should not withhold information simply because it may do so legally. I strongly encourage agencies to make discretionary disclosures of information. An agency should not withhold records merely because it can demonstrate, as a technical matter, that the records fall within the scope of a FOIA exemption.

    Second, whenever an agency determines that it cannot make full disclosure of a requested record, it must consider whether it can make partial disclosure. Agencies should always be mindful that the FOIA requires them to take reasonable steps to segregate and release nonexempt information. Even if some parts of a record must be withheld, other parts either may not be covered by a statutory exemption, or may be covered only in a technical sense unrelated to the actual impact of disclosure.

    At the same time, the disclosure obligation under the FOIA is not absolute. The Act provides exemptions to protect, for example, national security, personal privacy, privileged records, and law enforcement interests. But as the President stated in his memorandum, “The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.”

    Pursuant to the President’s directive that I issue new FOIA guidelines, I hereby rescind the Attorney General’s FOIA Memorandum of October 12, 2001, which stated that the Department of Justice would defend decisions to withhold records “unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records.”

    Instead, the Department of Justice will defend a denial of a FOIA request only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or (2) disclosure is prohibited by law. With regard to litigation pending on the date of the issuance of this memorandum, this guidance should be taken into account and applied if practicable when, in the judgment of the Department of Justice lawyers handling the matter and the relevant agency defendants, there is a substantial likelihood that application of the guidance would result in a material disclosure of additional information.

    FOIA Is Even-one’s Responsibility

    Application of the proper disclosure standard is only one part of ensuring transparency. Open government requires not just a presumption of disclosure but also an effective system for responding to FOIA requests. Each agency must be fully accountable for its administration of the FOIA.

    I would like to emphasize that responsibility for effective FOIA administration belongs to all of us—it is not merely a task assigned to an agency’s FOIA staff. We all must do our part to ensure open government. In recent reports to the Attorney General, agencies have noted that competing agency priorities and insufficient technological support have hindered their ability to implement fully the FOIA Improvement Plans that they prepared pursuant to Executive Order 13392 of December 14, 2005. To improve FOIA performance, agencies must address the key roles played by a broad spectrum of agency personnel who work with agency FOIA professionals in responding to requests.

    Improving FOIA performance requires the active participation of agency Chief FOIA Officers. Each agency is required by law to designate a senior official at the Assistant Secretary’ level or its equivalent who has direct responsibility for ensuring that the agency efficiently and appropriately complies with the FOIA. That official must recommend adjustments to agency practices, personnel, and funding as may be necessary.

    Equally important, of course, are the FOIA professionals in the agency who directly interact with FOIA requesters and are responsible for the day-to-day implementation of the Act. I ask that you transmit this memorandum to all such personnel. Those professionals deserve the full support of the agency’s Chief FOIA Officer to ensure that they have the tools they need to respond promptly and efficiently to FOIA requests. FOIA professionals should be mindful of their obligation to work “in a spirit of cooperation” with FOIA requesters, as President Obama has directed. Unnecessary bureaucratic hurdles have no place in the “new era of open Government” that the President has proclaimed.

    Working Proactively and Promptly

    Open government requires agencies to work proactively and respond to requests promptly. The President’s memorandum instructs agencies to “use modem technology to inform citizens what is known and done by their Government.” Accordingly, agencies should readily and systematically post information online in advance of any public request. Providing more information online reduces the need for individualized requests and may help reduce existing backlogs. When information not previously disclosed is requested, agencies should make it a priority to respond in a timely manner. Timely disclosure of information is an essential component of transparency. Long delays should not be viewed as an inevitable and insurmountable consequence of high demand.

    In that regard. I would like to remind you of a new requirement that went into effect on December 31, 2008, pursuant to Section 7 of the OPEN Government Act of 2007, Pub. L. No. 110-175. For all requests filed on or after that date, agencies must assign an individualized tracking number to requests that will take longer than ten days to process, and provide that tracking number to the requester. In addition, agencies must establish a telephone line or Internet service that requesters can use to inquire about the status of their requests using the request’s assigned tracking number, including the date on which the agency received the request and an estimated date on which the agency will complete action on the request. Further information on these requirements is available on the Department of Justice’s website at

    Agency Chief FOIA Officers should review all aspects of their agencies’ FOIA administration, with particular focus on the concerns highlighted in this memorandum, and report to the Department of Justice each year on the steps that have been taken to improve FOIA operations and facilitate information disclosure at their agencies. The Department of Justice’s Office of Information Policy (OIP) will offer specific guidance on the content and timing of such reports.

    I encourage agencies to take advantage of Department of Justice FOIA resources. OIP will provide training and additional guidance on implementing these guidelines. In addition, agencies should feel free to consult with OIP when making difficult FOIA decisions. With regard to specific FOIA litigation, agencies should consult with the relevant Civil Division, Tax Division, or U.S. Attorney’s Office lawyer assigned to the case.

    This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or equity by any party against the United States, its departments, agencies, instrumentalities or entities, its officers, employees, agents, or any other person.

  16. DXer said

    The top banana has responded in providing that it is all “FOIA-exempt” (a phrase that is meaningless unless the exemption is specified).

    President Obama issued this memo on May 27, 2009. Maybe the NAS and FBI didn’t get the memo.

    Office of the Press Secretary

    For Immediate Release May 27, 2009

    SUBJECT: Classified Information and Controlled Unclassified Information

    As outlined in my January 21, 2009, memoranda to the heads of executive departments and agencies on Transparency and Open Government and on the Freedom of Information Act, my Administration is committed to operating with an unprecedented level of openness. While the Government must be able to prevent the public disclosure of information where such disclosure would compromise the privacy of American citizens, national security, or other legitimate interests, a democratic government accountable to the people must be as transparent as possible and must not withhold information for self-serving reasons or simply to avoid embarrassment.

  17. DXer said

    This is the form to use:
    Request For Information from the Public Access Records Office

    Contact the Public Access Records Office to make an inquiry or to schedule an appointment to view project materials available to the public. Normal business hours for the Public Access Records Office are 9:00 am to 5:00 p.m., Monday through Friday.
    Questions about this form? Send an email to the Public Access Records Office
    * Indicates Required Fields

  18. DXer said

    Ed Hammond confirms in response to my approach to him that Sunshine Project is defunct and based on his experience with NAS, I believe litigation will be necessary as it was when the ACLU needed to sue for the torture documents.

    What was the purpose of working so hard and believe so much in Obama if the government is not going to start complying with the rule of law?

  19. DXer said


    Get the list of documents in the public access file and pay for copying of all the documents. Pay for expedited shipping (or ask if they are electronically available). Then we can address the issues that were not put in the file by the FBI. Given a failure to list those being withheld, suit is necessary so that a Vaughn Index is created. Presumably that file will include the contract under which the FBI that is paying them nearly a million dollars (or whatever the amount is) and will state the principle of withholding that the NAS staff (compensated from the FBI funds) is following in withholding the documents from you.

    But first let’s start with what is on the list and not on the list. You’ll find as an example of a document NOT on the list MICRODROPLET CELL CULTURE TECHNIQUE, a publicly available document.

    By not even providing a list of the documents the FBI selectively and in its unchallenged discretion withheld, the public has no way of knowing that the FBI failed to provide NAS with the open source MICRODROPLET CELL CULTURE TECHNIQUE. Dr. Joe Michael and Dr. Paul Kotula did not have occasion to address the issue given they are not life scientists and had to be told what an exosporium was or the nature of folds on a spore coat. Outside commenters will not be in a position to point out what has not been provided the experts on the NAS panel. Rather than instilling confidence, the contemplated procedure will merely demonstrate the axiom: “garbage in, garbage out.” The statute expressly exempts only the CIA, not the FBI. If the NAS believes particular exemptions under FOIA that apply then they can be invoked and their particulars addressed. If particular documents fall within one of those exemptions, then that is grounds for withholding the particular document. But it needs to be formally invoked so as to focus the issues for litigation. To blow off the inquiry by Anonymous Scientist and not even respond for over a month was tantamount amount to an announcer with a megaphone saying “Now, ladies and gentlemen, I want to draw your attention to the dog and pony show” in the middle ring (Alice Gast’s claims to the local reporter notwithstanding).

    The co-inventors of the MICRODROPLET CELL CULTURE TECHNIQUE include the leading anthrax scientist Alibek and former deputy US Commander Bailey, the two colleagues at the DARPA-funded Center for Biodefense who were 15-feet — in the same suite — as Taliban supporter Ali Al-Timimi.

    Initially, however, the first named co-inventor in 2001 patent titled MICRODROPLET CELL CULTURE TECHNIQUE was from Al-Timimi’s university the year before, at George Washington University. He was a leading aerosol scientist and wrote the first definitive text on potential of aerosol medications.

    Dr. Shepherd is Founding Chairman of the Sabin Vaccine Institute. In addition, he is an Adjunct Professor at The George Washington University. Previously he was Chairman and CEO of a company he founded as Aerosol Techniques in 1955. A world-recognized expert on aerosol medications, he holds several patents on aerosol products, and spearheaded the development of the metered dose inhaler. He led a successful effort to fund the nation’s first research laboratory dedicated to aerosol pharmaceuticals at Columbia University College of Pharmacy. He is the author of Aerosols: Science and Technology, the first definitive text on the potential of aerosol medications.

    Thus, the DARPA funded not only work on silica nanocomposite work for biological uses in 2001 but this microdroplet cell culture method that as previously explained permitted the concentration of anthrax.

    Now the NAS panel may never have occasion to address such an issue and apply its expertise given “hide-the-ball” being played by the FBI.

    It has been argued on this forum that Dr. Ivins did not have the time or space to use surface cultivation method.

    DARPA funded researchers explained:

    “On the negative side, surface cultivation of microorganisms is not amenable to large scale production. The process of filling and inoculating numerous individual plates or dishes with culture and then individually harvesting each plate is extremely labor intensive. Furthermore, the storage of solid surface plates or dishes inoculated with microorganisms requires significant allocations of space in sophisticated incubators.
    It further has been argued on this forum that the fermenter did not work:

    DARPA funded researchers including the leading anthrax scientist and a former Deputy USAMRIID Commander) explained:

    “With the submerged method, a microorganism is cultured throughout the liquid media, Nutrients are absorbed from contact with the media surrounding the individual microorganisms, oxygen and other gasses are provided by various means aeration that one skilled in the art can readily appreciate, and metabolites seep out and into the media. Usually, the nutrient media is also stirred continually, in order to evenly distribute the microorganisms.

    The submerged cultivation method does, however, require an extensive investment in equipment necessary for the large scale production of cell cultures. …

    Another major drawback to the large scale submerged cultivation method is the greater risk and effects of contamination that this method entails.”

    The DARPA-funded researchers including the leading anthrax scientist and a former Deputy USAMRIID Commander who were the colleagues of the other “anthrax weapons suspect” (which is his own lawyer’s description) proposed a method that avoided these downsides.

    “SUMMARY OF THE INVENTION It is therefore an object of the invention to provide for the growth of a microbe or cell culture with a hybrid method that both combines the beneficial features of submerged and surface cultivation while eliminating some of the negative features inherent in both procedures.”

    “According to the invention, cells are cultivated in a plurality of individual microdroplets of liquid media. These microdroplets are created by aerosolizing licuid media that has been inoculated with the cells of interest and coating theaerosolized droplets with hydrophobic particles of solid material, such as silicon dioxide, for example. The individual microdroplets are stabilized within the hydriophobic solid particles, thereby providing a large number of small cell culture reactors.”

    The DARPA-funded researchers continue:

    “Once the microdroplets are formed and added to the coating vessel, dry hydrophobic powder composed of a plurality of particles of, for example, a hydrophobic ceramic, are introduced into the vessel where the coating process then occurs.”

    “The hydrophobic particles intercalate with and adhere to the individual microdroplets, preventing the microdroplets from becoming a confluent liquid, thereby creating a plurality of individual microdroplet cultures, each containing an isolated droplet of growing cells. The resulting product is a slurry-like material that has a semi liquid consistency, due to the fact that the individual microdroiplets are prevented from re-aggregating as a confluent liquid. Once the coated hydrophobic particles are formed, they are collected and removed through narrow slotted openings located at the bottom of the coating vessel. The coated microdroplets are then cultured either in a batch or continuous flow process.”

    The DARPA-funded researchers continue:

    “In one embodiment of the invention, the inoculated media is converted into microdroplets prior to introduction into the coating vessel. Such a process is enabled by introducing the inoculated media via a spray nozzle that dispenses individual microdroplets into the vessel.”

    “The size of individual microdrioplets can be regulated by adjusting such factors as the size of the nozzle or portal delivering the liquid or aerosolized media,

    …in one embodiment of the invention, the hydrophobic particles comprises a powder of silicon dioxide. It can readily be seen by one skilled in the art, however, that the hydrophobic particles can alternatively comprise other hydrophobic ceramic particlese volume of the vessel, the speed at which the various components are added, the power and frequency of electromagnetic induction (in one embodiment of the invention), and the type of hydrophobic particle utilized, for example.”

    “In one embodiment of the invention, the hydrophobic particles comprises a powder of silicon dioxide. It can readily be seen by one skilled in the art, however, that the hydrophobic particles can alternatively comprise other hydrophobic ceramic particles (e.g., possibly aluminum oxides and zinc oxides).” (Now we need an expert on the NAS panel to be in a position to ask: What about ferrous oxides? )

    “In a particularly preferred embodiment, the silicon dioxide particle sare Aerosil 300, produced by Brenntag N. V. of Belgium. In another preferred embodiment, the silicon dioxide particles are selected from the group comprising the AEROSIL series of powders manufactured by the Degussa-hüls Cor ? oration (i.., AEROSIL R 104, AEROSIL R 106, AEROSIL R 202, AEROSIL R 805, AEROSIL R 812, AEROSIL R812. S, AEROSIL R 972, AEROSIL R 974, and AEROSIL R. 8200). Other silicon dioxide particles are contemplated and within the scope of the invention.”


    “As can readily be appreciated by on the art, it will not always be necessary or preferable to separate the hydrophobic particles away from the liquid cell culture following cell growth. For example, since silicon dioxide is frequently utilized in soil treatment, there is no need to remove the silicon dioxide from cell 1 cultures that are grown for the purposes of soil treatment. Furthermore, since the hydrophobic particles limit the potential for the spread of contamination, it may be desirable to maintain cultivated cells within the individual hydrophobic microdroplets for storage purposes.”


    “Production of Vaccine Products.

    The present invention is suitable to the large scale production of recombinant bacteria or tissue culture cells that have been genetically engineered to produce an antigen or antigens that are effective vaccine products. “

    • DXer said

      Dr. Driks, on the NAS panel, btw has a new article that explains the folds on the spore coat. The exercise here is make sure that these experts have the documents they need to fulfill their task. The experts in white coats may not quite appreciate the hide-the-ball played in such matters — as alluded to by the scientist who explained it was important for the NAS to press the FBI for documents. She even explained that the FBI had withheld documents from her that were key to analysis.

  20. Anonymous Scientist said

    I have sent the following email to NAS. I’m advised that I may act as a plaintiff in possible legal action should the requests continue to be ignored:

    Fran: I have made two requests thus far (Friday August 14 and then again Tuesday September 2, 2009) via the link below to receive copies of the the documents that, according to your website, were reviewed by the NAS anthrax committee. Please advise to the availabilty of these documents.

    Thanks in advance, XXXXX XXXXXXXX

    Project Information

    Printer Friendly Version

    Project Title:

    Review of the Scientific Approaches used During the FBI’s Investigation of the 2001 Bacillus Anthracis Mailings
    PIN: BLSX-K-08-10-A

    Major Unit:

    Division on Earth and Life Studies
    Policy and Global Affairs Division

    Sub Unit: Board on Life Sciences
    Committee on Science, Technology, and Law

    RSO: Sharples, Fran

    Subject/Focus Area:

    Project Scope
    In response to a formal request from the Federal Bureau of Investigation, the National Academies will conduct an independent review of the scientific approaches used during the investigation of the 2001 Bacillus anthracis (B. anthracis) mailings. An ad hoc committee with relevant expertise will evaluate the scientific foundation for the specific techniques used by the FBI to determine whether these techniques met appropriate standards for scientific reliability and for use in forensic validation and whether the FBI reached appropriate scientific conclusions from its use of these techniques. In instances where novel scientific methods were developed for purposes of the FBI investigation itself, the committee will pay particular attention to whether these methods were
    appropriately validated. The committee will review and assess scientific evidence
    (studies, results, analyses, reports) considered in connection with the 2001 Bacillus
    anthracis mailings. In assessing this body of information, the Committee will limit its
    inquiry to the scientific approaches, methodologies, and analytical techniques used during
    the investigation of the 2001 B. anthracis mailings.

    The areas of scientific evidence to be studied by the committee include, but may not be
    limited to:

    1. genetic studies that led to the identification of potential sources of B. anthracis recovered from the letters;

    2 analyses of four genetic mutations that were found in evidence and that are unique to a subset of Ames strain cultures collected during the investigation;

    3. chemical and dating studies that examined how, where, and when the spores may have
    been grown and what, if any, additional treatments they were subjected to;

    4. studies of the recovery of spores and bacterial DNA from samples collected and tested during the investigation; and

    5. the role that cross contamination might have played in the evidence picture.

    The committee will necessarily consider the facts and data surrounding the investigation of the 2001 Bacillus anthracis mailings, the reliability of the principles and methods used by the FBI, and whether the principles and methods were applied appropriately to the facts. The committee will not, however, undertake an assessment of the probative value of the scientific evidence in any specific component of the investigation, prosecution, or civil litigation and will offer no view on the guilt or innocence of any person(s) in connection with the 2001 B. anthracis mailings, or any other B. anthracis incidents.

    The project is sponsored by the Federal Bureau of Investigation.

    The start date for the project is 4/24/2009.

    A report will be issued at the end of the project.

    Project Duration: 18 months

    Provide FEEDBACK on this project.

    Contact the Public Access Records Office to make an inquiry or to schedule an appointment to view project materials available to the public.

    • DXer said

      Now who is the holdover from the Bush era that is obstructing with the FOI production in Amerithrax? A national security advisor in the White House?
      DC Field Office head Persichini? FBI Director Mueller? Dr. Bannan? I have no idea. One FOI officer said there 30 people who had their hands on the release button.

      Obama may be brilliant and favor sound policy but unless his vision is implemented by those actually making the decisions, we might as well have Andrew Card there in person covering his ass and avoiding the disclosures about Al-Timimi. I just don’t think Andy wants the letter of commendation Ali received to ever see the light of day. Nor do some want the documents relating to the DARPA-funded patents relating to silica in the culture medium (with the silica then removed by repeated centrifugation) brought to the attention of the NAS panel.

      White House will publicly release visitor logs
      (AP) – 29 minutes ago

      WASHINGTON — President Barack Obama said Friday his administration will start releasing the names of people who visit the White House, reversing a long-standing policy transcending both Democratic and Republican presidents.

      The move could shed light on the people who influence White House decision-making. It comes following a White House review of its disclosure policy and legal pressure from the watchdog group Citizens for Responsibility and Ethics in Washington.

      Until now, the Obama had sided with the Bush administration’s stand of refusing to release records, in contrast with Obama’s pledge of transparency.

      But Obama said Friday: “We will achieve our goal of making this administration the most open and transparent administration in history, not only by opening the doors of the White House to more Americans, but by shining a light on the business conducted inside.”

      “Americans have a right to know whose voices are being heard in the policymaking process,” the president said.

  21. DXer said

    Let’s spin out the developing scenario:

    The NAS will provide the list of documents but will refuse to make them available for inspection even though none of those documents are classified.

    Lew and Anonymous Scientist will argue that NAS has violated the open government law known as the Federal Advisory Committee Act.

    Public interest organizations like the Center for Science in the Public Interest and the Sunshine Project will emerge out of the wings and sue the NAS for violation of NAS.

    In court papers, NAS will argue it properly blocked access to the so-called public access file to conduct a security review. But the plaintiffs will argue NAS violated the open government law known as the Federal Advisory Committee Act. Legal experts contacted by Lew will share the plaintiff’s view, arguing NAS failed to correctly balance the need for both security and openness with its handling of the public access file — and will point out that none of the documents produced to date were in fact classified.

    Under the Federal Advisory Committee Act, which is designed to provide the public a window into the deliberations of government advisory committees, NAS is required to provide the public access to documents it receives for studies, provided they are not exempt from disclosure under the Freedom of Information Act. The law does not require the public to file a FOIA request to inspect such documents.

    Anonymous Scientist will post on Lew’s a copy of the email he sent requesting access to the documents to which he received no response at all in violation of FACA.

    Lew will contact Herbert Fenster, an attorney who specializes in FACA, who will tell Lew that NAS almost certainly violated FACA and FOIA by delaying or actually blocking access to the documents.

    Attorney Fenster will explain: “That reason for the statute is to insure that the work of a [federal advisory committee] does not go on in a vacuum but instead is made subject to ‘sunshine’ concepts that are built into the FACA.”

    The director of the Federation of American Scientists’ Project on Government Secrecy will be contacted and will say “It totally undercuts the credibility of their disclosure policy.” Everyone understands the need to withhold some information in the case of properly classified information but it is a “betrayal of the public trust” when that authority is employed unnecessarily.

    There will be a delay in Lew reporting on legal counsel’s opinion because of a slow dial-up in the wilds of England he is visiting and so the first NAS will receive of the federal suit will be service of papers.

    In response to the suit, NAS panel head Alice Gast will respond that NAS was preoccupied this year with getting the report published within the year. Lifting the restrictions on the public access file — which was delayed by objections by the FBI to production — was a lesser priority, she’ll explain. NAS officials and Alice Gast will deny NAS violated FACA. She will argue that because NAS panel expected to be seeking access to classified information when performing the study, the contract said the FBI would review the report and all related documents before they were released to ensure nothing classified was published. She will reason that some documents had markings that NAS could not decipher to know if they meant classified or unclassified or law enforcement sensitive.

    An NAS spokesman and NAS defense counsel will invoke the language of the contract with the FBI requiring such review. Plaintiffs will disputes the notion that NAS took a reasonable approach to fulfilling FACA obligations and called the very concept of such a contract “absurd.” According to NAS’ Internet site, the academy and its associated organizations are private, not governmental, organizations. But NAS is essentially part of the executive branch and the contract should be viewed as an agreement between two parts of the executive branch. The notion that such a contract could justify delays in providing the documents turns the FACA statute on its head.

    The NAS spokesman will argue that he asked for the public file to be withheld and reviewed in keeping with White House Chief of Staff Andrew Card’s March 19 2002 memo on safeguarding information regarding weapons of mass destruction and other sensitive documents related to homeland security. DXer will point out that Al-Timimi, Andrew Card’s former assistant, is suspected to have accessed to the know-how related to the concentration of anthrax by using silica in the growth medium. And that this memo is part of the Bush Administration’s — last most flamboyantly manifested by US Jeff Taylor’s performance at the press conference — screwing the pooch in Amerithrax.


    March 19, 2002



    Assistant to the President and Chief of Staff


    Action to Safeguard Information Regarding Weapons of Mass Destruction and Other Sensitive Documents Related to Homeland Security

    As noted in many discussions during the past several months, you and your department or agency have an obligation to safeguard Government records regarding weapons of mass destruction. Weapons of mass destruction include chemical, biological, radiological, and nuclear weapons. Government information, regardless of its age, that could reasonably be expected to assist in the development or use of weapons of mass destruction, including information about the current locations of stockpiles of nuclear materials that could be exploited for use in such weapons, should not be disclosed inappropriately.

    I asked the Acting Director of the Information Security Oversight Office and the Co-Directors of the Justice Department’s Office of Information and Privacy to prepare guidance for reviewing Government information in your department or agency regarding weapons of mass destruction, as well as other information that could be misused to harm the security of our Nation and the safety of our people. Their guidance is attached, and it should be distributed to appropriate officials within your department or agency, together with this memorandum, to assist in your undertaking an immediate reexamination of current measures for identifying and safeguarding all such information at your department or agency.

    All departments and agencies should review their records management procedures and, where appropriate, their holdings of documents to ensure that they are acting in accordance with the attached guidance. They should report the completion, or status, of their review to my office through the Office of Homeland Security no later than 90 days from the date of this memorandum.

    If agency officials need assistance in determining the classification status of records related to the development or use of weapons of mass destruction, they should contact the Information Security Oversight Office, at 202-219-5250. For assistance in determining the classification of nuclear and radiological weapons classified under the Atomic Energy Act, they should contact the Department of Energy’s Office of Security, at 202-586-3345. If they need assistance in applying exemptions of the Freedom of Information Act (FOIA) to sensitive but unclassified information, they should contact the Justice Department’s Office of Information and Privacy (OIP), at 202-514-3642, or consult OIP’s FOIA Web site at [sic].

    Other leading scientists will come forward and point to an essay posted over a half decade ago on the academy’s Internet site, in which NAS President Bruce Alberts previously took aim at the government’s push to withhold sensitive but unclassified documents, arguing that criteria is too vague to be effective. The essay is co-signed by the presidents of the National Academy of Engineering and the Institute of Medicine. In that essay, the three wrote: “Restrictions are clearly needed to safeguard strategic secrets; but openness also is needed to accelerate the progress of technical knowledge and enhance the nation’s understanding of potential threats.”

    In another essay published on the academy’s Internet site, Aftergood criticized Card’s guidance as vague.

    “This is a problem, because agencies may have many reasons for considering information sensitive that have nothing to do with national security.”

    One of the posters on Lew’s board licensed in DC will file suit in the District of Columbia given the other game-playing the USG has evidenced in the FOIA productions (most notably USAMRIID and Sandia). A federal district court judge will hold that given that materials relating to the guilt or innocence of any particular person is not before the NAS, there is no basis for objection for unclassified materials. Attorneys fees will be awarded the plaintiffs.

    In an affidavit, panel head Gast will say: “But I really do feel we honestly were caught between not just FACA and the language in the contract but also this whole business about trying to be responsible.” “It was less important to us that the documents might have been delayed in the release than that we really didn’t release something that potentially could be usable by somebody. And I think we did consciously make that tradeoff.” That language will be cited by the District Court in awarding attorneys fees with the comment that the documents, when finally revealed, do not support the claim.

    It seems that the NAS should have just complied with the FACA and responded to the email Anonymous Scientist originally sent with notice of where he can go to review the documents.

    Complying with the rule of law that FBI Director Mueller purports to stand for saves everyone a lot of time and effort.

    From the very start, the NAS failure to respond to the initial inquiry by Anonymous Scientist shows litigation may be necessary given the violation of FACA.

    • DXer said

      As an example: I’m told that one document produced to Sandia includes a comparison of the attack vs. the Somlyo samples. There simply is no basis under FOIA for withholding the document.

    • DXer said

      §1. Short title This Act may be cited as the “Federal Advisory Committee Act Amendments.”

      §10. Advisory committee procedures; meetings; notice, publication in Federal Register; regulations; minutes; certification; annual report; Federal officer or employee, attendance
      (a)(1) Each advisory committee meeting shall be open to the public.
      (2) Except when the President determines otherwise for reasons of national security, timely notice of each such meeting shall be published in the Federal Register, and the Adminis- trator shall prescribe regulations to provide for other types of public notice to insure that all interested persons are notified of such meeting prior thereto.
      (3) Interested persons shall be permitted to attend, appear before, or file statements with any advisory committee, subject to such reasonable rules or regulations as the Administra- tor may prescribe.
      (b) Subject to section 552 of Title 5, United States Code, the records, reports, transcripts, min- utes, appendixes, working papers, drafts, studies, agenda, or other DOCUMENTS WHICH WERE MADE AVAILABLE TO or prepared for or by each advisory committee shall be available for public inspection and copying at a single location in the offices of the advisory committee or the agency to which the advisory committee reports until the advisory committee ceases to exist.

      (3) The Academy shall ensure that meetings of the committee to gather data from individuals who are not officials, agents, or employees of the Academy are open to the public, unless the Academy determines that a meeting would disclose matters described in section 552(b) of Title 5, United States Code. The Academy shall make available to the public, at reasonable charge if appropriate, written materials presented to the committee by individuals who are not officials, agents, or employees of the Academy, unless the Academy determines that making material available would disclose matters described in that section.

    • DXer said

      Public Access to Records (FACA)

      March 14, 2000


      SUBJECT: Public Access to Advisory Committee Records

      The purpose of this memorandum is to provide guidance regarding the circumstances under which requests for records generated by or for Federal advisory committees may be processed under the request and review process established by the Freedom of Information Act (FOIA), 5 U.S.C. 552(a)(3).


      Section 10(b) of the Federal Advisory Committee Act (FACA), as amended, (Public Law 92-463, 5 U.S.C. App.) provides that:

      “Subject to section 552 of title 5, United States Code, the records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by each advisory committee shall be available for public inspection and copying at a single location in the offices of the advisory committee or the agency to which the advisory committee reports until the advisory committee ceases to exist.”

      The purpose of section 10(b) is provide for the contemporaneous availability of advisory committee records that, when taken in conjunction with the ability to attend committee meetings, provide a meaningful opportunity to fully comprehend the work undertaken by the committee. Records covered by the exemptions set forth in section 552(b) of FOIA may generally be withheld. However, it should be noted that FOIA Exemption 5 cannot be used to withhold documents reflecting an advisory committee’s internal deliberations.

      Policy and Analysis.

      Although advisory committee records may be withheld under FOIA’s provisions if there is a reasonable expectation that the records sought fall within the exemptions contained in section 552(b), agencies may not require members of the public or other interested parties to file requests for non-exempt committee records under the request and review process established by FOIA section 552(a)(3).

      In Food Chemical News V. Department of Health and Human Services (980 F. 2nd 1468, 299 U.S. App. DC 25), the District of Columbia Court of Appeals held that:

      “…under section 10(b) of FACA an agency is generally obligated to make available for public inspection and copying all materials that were made available to or prepared for or by an advisory committee. Except with respect to those materials that the agency reasonably claims to be exempt from disclosure pursuant to FOIA, a member of the public need not request disclosure in order for FACA 10(b) materials to be made available. Thus, whenever practicable, all 10(b) materials must be available for public inspection and copying before or on the date of the advisory committee meeting to which they apply.” (Emphasis added)

      Accordingly, agencies may not delay making available non-exempt records to interested parties under FOIA procedures as an administrative convenience, or for other reasons.

      The Attorney General issued guidance on October 4, 1993 and September 3, 1999, regarding additional steps that Federal agencies should take to comply with both the letter and the spirit of FOIA. As noted in the memoranda, the Department of Justice (DOJ) “will no longer defend an agency’s withholding of information merely because there is a ‘substantial legal basis’ for doing so. Rather, in determining whether or not to defend a non-disclosure decision (the DOJ) will apply a presumption of disclosure.”

      Given the plain and unambiguous language contained in section 10(b) of FACA, coupled with controlling case law and DOJ’s FOIA guidance, I am encouraging each Committee Management Officer (CMO) to assure the maximum timely availability of covered advisory committee records. If you have not already done so, you should consider:

      Amending agency procedures to facilitate the timely release of requested information and materials;
      Segregating information and materials that must be released under FACA section 10(b) from those that must be processed under FOIA; and,
      Expediting requests for release of information and materials that must be legitimately processed under FOIA, including the provision of timely explanations for unanticipated delays to interested parties.
      As always, questions concerning legal issues should be addressed in consultation with the Office of General Counsel.

    • DXer said

      Scott Shane on “ACLU’s 130,000 pages of secrets.” (Scott Shane has closely covered Amerithrax — first for the Baltimore Sun and now for the New York Times.)

      Sunday, Aug. 30, 2009

      ACLU’s 130,000 pages of secrets
      By Scott Shane – New York Times News Service

      WASHINGTON — In spring 2003, long before Abu Ghraib or secret prisons became part of the American vocabulary, two lawyers at the American Civil Liberties Union noticed a handful of press reports about allegations of abuse of prisoners in American custody.

      The lawyers, Jameel Jaffer and Amrit Singh, wondered: Was there a broader pattern of abuse, and could a Freedom of Information Act request uncover it? Some of their colleagues were skeptical. One made a tongue-in-cheek offer of $1 for every page they turned up.

      Six years later, their document request is among the most successful in the history of public disclosure, with 130,000 pages of previously secret documents released to date.

      The case has produced revelation after revelation: battles between the FBI and the military over treatment of detainees at Guantánamo Bay; autopsy reports on prisoners who died in custody in Afghanistan and Iraq; Justice Department memorandums justifying harsh interrogation methods; and descriptions of what happened inside the CIA’s overseas prisons.

      “This is certainly a landmark case in every respect, including in the history of the Freedom of Information Act,” said Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists.

      The ACLU’s initial 2003 request produced only an innocuous set of State Department “talking points” before the organization, joined by four other advocacy groups, sued in June 2004.

      Documents began to flow only after September 2004, when U.S. District Judge Alvin K. Hellerstein criticized the “glacial pace” of the government’s response.

      But the recent disclosures caused deep unease inside the agency. Former CIA director Michael V. Hayden said releasing documents designated as top secret could undermine cooperation from foreign intelligence services. “Our foreign partners may say there is no value to our promise in the future that ‘Don’t worry, we can keep this secret,'” he said.

    • DXer said

      Center for Science in the Public Interest (“CSPI”) has done great work on the NAS and the issue of conflicts of interests. CSPI is an 800-pound gorilla on wide-ranging matters. PhD Michael J. and his past and present litigation director are both great.

      Substantively, Sunshine Project was more narrowly focused on these issues and certainly earnest in its endeavors in submitting FOIA requests on the issue of bioweapons. Mr. Hammond may be closing up shop, though — I can’t recall.

      For mean lean litigating efficiency in the trenches on a FOIA issue, consider Public Citizen. Alan Morrison set a high standard followed by those litigators.

      Maybe the perfect balance, though, between substantive expertise and mean lean make-it-happen yesterday type results would be

      Federation of American Scientist Project on Government Secrecy

      They could be the ACLU of Amerithrax if they wanted. BHR might be a good entry given her familiarity with the issues.

      Of course, Scott Shane of the NYT could make it happen last week if he was suitably motivated.

      Then there’s our own Lew who has shown he can produce results — even though I don’t recall that Senator Grassley ever produced the FBI’s response to him.

      Involvement of more than one of these non-profits might be best. Fan out. I’ll keep Ed busy talking about First Graders.

      Of course, if it would be simplest if NAS personnel simply read the laws, got good counsel and complied. The documents should have been made available last month.

      • DXer said

        Brainstorming some additional possibilities of non-profits to approach, Lew was President of Public Health Research Institute which had several BL-3s in their NY office building (including one of their own) and an earlier interest in Amerithrax. So given Lew’s expertise that group might be a possible group to approach.

        Separately, I worked with Public Health Advocacy Institute on a litigation matter that involved hundreds of FOIA request and 12 or so class actions. Either group, while not as obvious possibilities as the FAS Project on Government Secrecy or Public Citizen, are candidates. There is no reason a number of non-profits could not be plaintiffs.

    • DXer said

      Naming the right additional defendant or two should avoid the mootness issue that arose in Center for Arms Control and Non-Proliferation upon completion of the panel’s work. 531 F.3d 836 (D.C. Cir. 2008).

    • DXer said

      Anonymous Scientist made two requests (Friday August 14 and then again Tuesday September 2, 2009) via the linkto receive copies of the the documents that, according to the NAS website, were reviewed by the NAS anthrax committee. He (but others too even without inquiry) have standing notwithstanding the absence of a “FOI request.” He has agreed to serve as one of the plaintiffs. NRDC v. Johnson, 488 F.3d 1002 (D.C. Cir. 2007) (“The district court dismissed NRDC’s FACA claim for lack of standing because, the court found, NRDC had not filed a formal request with the Agency under the Freedom of Information Act (FOIA), 5 U.S.C. ß 552 [***2] … We hold that the district court erred and therefore reverse.)

      The Court of Appeals held:

      “We held in Food Chemical News v. Department of Health and Human Services, 299 U.S. App. D.C. 25, 980 F.2d 1468, 1472 (D.C. Cir. 1993), that the government’s obligation to make documents available under FACA does not depend on whether someone has filed a FOIA request for those documents. FACA incorporates the FOIA exemptions, see 5 U.S.C. App. 2, ß 10(b), but the government’s duty to disclose is otherwise independent of FOIA. We think it follows that a plaintiff does not have to file a formal FOIA request before bringing an action seeking a remedy for alleged FACA violations, including violations of the statute’s disclosure requirements.”

  22. DXer said

    This rule is explained in the chapter “New Initiatives and the Future of Forensic Science” at p. 518 in
    It is contained in “Forensic science under siege: the challenges of forensic laboratories and …” ed. By Kelly Pyrek


    Forensic science laboratories’ reputations have increasingly come under fire. Incidents of tainted evidence, false reports, allegations of negligence, scientifically flawed testimony, or – worse yet – perjury in in-court testimony, have all served to cast a shadow over the forensic sciences. Instances of each are just a few of the quality-related charges made in the last few years. Forensic Science Under Siegeis the first book to integrate and explain these problematic trends in forensic science. The issues are timely, and are approached from an investigatory, yet scholarly and research-driven, perspective. Leading experts are consulted and interviewed, including directors of highly visible forensic laboratories, as well as medical examiners and coroners who are commandeering the discussions related to these issues. Interviewees include Henry Lee, Richard Saferstein, Cyril Wecht, and many others. The ultimate consequences of all these pressures, as well as the future of forensic science, has yet to be determined. This book examines these challenges, while also exploring possible solutions (such as the formation of a forensic science consortium to address specific legislative issues). It is a must-read for all forensic scientists. * Provides insight on the current state of forensic science, demands, and future direction as provided by leading experts in the field * Consolidates the current state of standards and best-practices of labs across disciplines * Discusses a controversial topic that must be addressed for political support and financial funding of forensic science to improve

    Limited preview – 2007 – 537 pages

  23. DXer said

    Click to access studycommitteprocess.pdf

    “In accordance with federal law and with few exceptions, information-gathering meetings of the committee are open to the public, and any written materials provided to the committee by individuals who are not officials, agents, or employees of the National Academies are maintained in a public access file that is available for examination.”

    • DXer said

      “Study Conduct”

      Public Access
      Legislation passed in late 1997 protects The Academies from government control under the Federal Advisory Committee Act. But in doing so, it explicitly requires The Academies to ensure public access to committee activities.

      For example, any meeting of a committee at which anyone other than committee members or officials, agents, or employees of the institution is present–whether in person, by telephone, or teleconference–is considered a “data-gathering committee meeting.” Except as determined and approved in advance by The Academies, all data-gathering committee meetings are open to the public. Data-gathering meetings that involve committee consideration of classified, proprietary, or personal-privacy information, however, exemplify situations in which The Academies will not open the meetings to the public.

      To facilitate the process of informing the public about a committee’s work and enabling interested individuals to attend open data-gathering sessions, an advance announcement must be posted–preferably 14 days before the meeting–on the institution’s Web site.

      Data-gathering committee meetings should be regarded as on the record. Therefore, whether or not representatives of the media are in attendance, the chair of the meeting advises everyone present of the nature and purpose of the meeting. Statements of this type are necessary to help ensure that participants and observers do not misinterpret the purpose of the meeting, or prematurely interpret the discussion to be the positions of individual participants, the committee, or the institution.

      To acquaint the public with the background of committee members, at the first data-gathering committee meeting the chair should ask each member of the committee to state briefly, in open session, those aspects of his or her background, experience, expertise, and previously stated positions that appear relevant to the functions to be performed by the committee. Committees also create opportunities that facilitate the gathering of as wide a range of views as possible, such as having a session for public comments at a data-gathering committee meeting or soliciting comments in writing or via e-mail from interested members of the public.

      Within 10 days following a closed committee meeting, The Academies will post on its Web site a brief summary of the meeting, listing the committee members present, the topics discussed, and materials made available to the committee. This summary will not disclose the substantive content, conclusions, recommendations, discussion of draft reports, or any report review comments.”

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