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

* DXer: The USAMRIID today formally refused to disclose where the mice were kept in the Bacteriology Suite B3 pursuant to this passive mouse experiment that Bruce Ivins worked on in September 2001 on the grounds that “the public interest consideration in the disclosure of such information does not outweigh preventing the disclosure of such information.”

Posted by DXer on December 6, 2013

DXer reasons that if USAMRIID had not withheld and destroyed the documents that would have permitted Dr. Ivins to reconstruct his time in September and October 2001, perhaps his suicide could have been avoided. USAMRIID wrongly told him his emails could not be retrieved. The person forgot to provide the documents relating to activity in his suite until after the grand jury. Then key Lab Notebooks were withheld from him, courtesy of the FBI. Key notebooks from 2001 have still not been produced.

Years later, USAMRIID now has chosen to block the path that might allow Dr. Ivins’ name to be cleared and his alibi tested. Given that the public interest clearly outweighs any countervailing interest in the identification of one animal room in the B3 suite (as it existed in 2001) versus another, USAMRIID will owe attorneys fees. The people deciding the issue appear not to understand Amerithrax or the public interest in knowing why Dr. Ivins was in the lab late onSeptember 28, 29, 30, 2001. It was a failure to understand such operational security issues that led to the decades-long mess in the first place.

Note “(e) Transparency” paragraph below

Screen shot 2013-12-06 at 5.03.58 PM

18 Responses to “* DXer: The USAMRIID today formally refused to disclose where the mice were kept in the Bacteriology Suite B3 pursuant to this passive mouse experiment that Bruce Ivins worked on in September 2001 on the grounds that “the public interest consideration in the disclosure of such information does not outweigh preventing the disclosure of such information.””

  1. richard rowley said

    “DXer reasons that if USAMRIID had not withheld and destroyed the documents that would have permitted Dr. Ivins to reconstruct his time in September and October 2001,….”
    What the guy at the other website (and anyone else for that matter) has been unable to do is: present a logical reason to explain why Ivins was prevented from being able to reconstruct his time in September and October of 2001 via consulting with contemporaneous notebooks, other paperwork.

    I was reminded of this quite recently when I first heard an interview by the Boston police of the suspected Craigslist killer (interview’s audio available on Youtube: ). In the course of the interview the detective says (paraphrase): ‘we spend 99% of our time excluding people’.
    Even allowing for some exaggeration, it’s certainly true that TRYING to exclude suspects is SOP for murder investigations and that it would have been in the Task Force’s interest to have given Ivins every opportunity to reconstruct his activities in the lab in the fall of 2001. That would have been true, regardless of the chronology. But the more time that has passed by, the more unlikely that an innocent scientist who regularly worked at USAMRIID could have accounted, without consulting with paperwork, for his daily activities in the lab many months to years previously.

    I’m guessing that there’s no security (or other) reason for USAMRIID to refuse to tell us at this late date where ANY experimental animals were kept before or during any trials in the fall of 2001.

    Makes you wonder.

    • DXer said

      USAMRIID response to FOIA request for Lab Notebooks
      Posted by Lew Weinstein on May 6, 2011

      Why did the DOJ and FBI deem it acceptable not to return all of the lab notebooks — when the AUSAs appreciate the importance of the contemporaneous record of events provided by the notebooks?

    • DXer said

      USAMRIID obtained 4241 from the FBI and it was produced on August 24, 2012 — over four years after Dr. Ivins’ death.

      Click to access 20000216_LabNotebook%204241_B01-11(redacted).pdf

      By January 2003, the animal caretaker had thrown away the individual cage cards on the formaldehyde experiment with the 52 rabbits that Dr. Ivins was doing those nights in the lab in B3 in early October 2001
      Posted by Lew Weinstein on November 1, 2011

      I asked Attorney Paul Kemp to learn of the papers in Dr. Ivins box he had given his attorney. Attorney Kemp did not respond. As I recall, Attorney Kemp was forbidden to interview other USAMRIID employees. Thus, for example, he would not have been able to gain the help of other employees who worked on the rabbit/formaldehyde experiments in reconstructing Dr. Ivins’ time.

      Dr. Little merely notes to me that he is surprised I am not bearing down on “Project Jefferson.” That was a DIA-led classified project.

      Usually when a ball is dropped a lot of people have a hand in dropping the ball.

      In refusing to disclose the animal room in Bacteriology Suite 3, no one has yet taken the responsibility with a written determination stating that the public interest is outweighed by the need for operational security. Thus, on its face the denial is unlawful and warrants disclosure and the award of attorneys fees.

      But bureaucratically the folks who had their hand on the ball include:

      (1) RIID or USAMRIID, United States Army Research Institute of Infectious Disease

      (2) SJA, Staff Judge Advocate

      (3) OPSEC, Operation Security


      (4) MEDCOM, Army Medical Command.

      Internal emails would show who actually in particular made the decision that under these facts the public interest was outweighed by the difference of Room 305, Room 310 in Bacteriology Suite B3 or some other room. There is a single “designee” tasked with making such written determinations.

      One of the perils of having work done by a bureaucracy is that the chain is only as strong as its weakest link.

      The USAMRIID FOIA officer has told me point blank that RIID could care less whether GAO has all the relevant documents bearing on the question of the Fall 2001 anthrax mailings.

      And I have that in writing. A federal court and the public loves to see those kinds of exhibits so as to gain insight into how balls are dropped by our government employees relating to protecting innocents.

      Robert Stevens deserved better. Ottilie Lundgren deserved better.

      John P. should never have agreed to cull emails from the batches produced from Dr. Ivins’ account — especially given that they are sequentially numbered when viewed in a certain computer format.

      • DXer said

        You may remember Henry Heine saying in his first of four radio interview upon leaving USAMRIID that there some things he could not talk about lest the FBI would lead him away in handcuffs. He and his unnamed colleague were experimenting in Building 1412 with antifoaming agents and antibiotic resistance. (Disclosure of the room number in the Bacteriology Suite B3 under the rabbit/formaldehyde experiment in no way implicates any classified experiment).

        You know HH’s bona fides because of his forthrightness. Same with all the many others who have spoken to these issues. The ones who lawyer up, refuse an interview, refuse to produce the documents, and have their depositions shredded are the ones who are interesting.

        Once you appreciate the millions being given the congressman charged with oversight of surveillance, you come to realize that good government, transparency and justice are the most important values to see vindicated.

        Secrecy often just serves to further the careers and profits of government workers — or, in this case, is just unthinkingly and needlessly invoked by people who don’t realize that the public interest favors good government, transparency and justice.

        Rm. 305, Rm. 310, or whatever simply does not involve any issue of operational security that is outweighed by the public interest in testing Dr. Ivins’ alibi.

    • DXer said

      according to Dr. Ivins’ email with Former Colleague #1 (Mara Linscott), produced last week by USAMRIID (withheld for 2 years by JAG), Bruce was not taking ambien, the sleeping aid, in Fall 2001
      Posted by Lew Weinstein on December 12, 2010

      Anyone who does not appreciate the importance of getting “on the same page” on an issue relating to the Al Qaeda anthrax threat and the unpersuasive “Ivins Theory” needs to read more.

    • DXer said

      FBI interview statement: If someone came in off hours it was to work on the animal experiments – this could take approximately two hours and was usually a one-person job.
      Posted by Lew Weinstein on January 1, 2012

      Dr. Mara Linscott told the FBI that she needed to see her lab notebooks to refresh her recollection of details, but that checking on the animals would take approximately two hours and was usually a one-person job; the FBI provided the one publication on which she worked involving the former Zawahiri associate but she notes that USAMRIID was a military institution and thus not all of the projects would be published.

      Posted by Lew Weinstein on November 27, 2011

      Congress and the GAO should act to prevent the Department of Justice from destroying the depositions of Patricia Fellows and Mara Linscott – by subpoena if necessary
      Posted by Lew Weinstein on November 30, 2011

    • DXer said

      I don’t think there is any doubt, though, that the decision-makers acting in good faith. It is only that they are mistaken under these facts that the exemption applies.

      They likely are viewing things more broadly:

      (1) the requestor has been in email contact with the successive Al Qaeda anthrax lab technicians Abdur Rauf and Yazid Sufaat. Abdur Rauf in particular was infiltrating USAMRIID and Porton Down at annual conferences in 1999 and 2000 — and maybe even 2001, the one held in Maryland.

      (2) the requestor loves his pet guinea pig to pieces and has long adored a fan of PETA. (PETA would infiltrate labs doing challenges to animals and the FBI considered a rumored plan for the infiltrator to get a job at USAMRIID).

      (3) they may reason that it is best not to set a precedent. They may be approaching the issue of operational security very broadly and feel that rooms within Biolevel 3 suites should not be disclosed. (They mistakenly think it would set a precedent — when instead it merely would implement the statutory requirement of balancing of the public interest under the particular facts.)

      So I don’t mean to be understood as saying that the unnamed officials/bureaucrats are acting in bad faith. They just appear not to know jack about the importance of the public interest in knowing where the 52 rabbits were located. They are just mistaken in applying the provision to these facts.

      B305. B310. Elsewhere. It matters only for the purpose of testing whether Dr. Ivins had a reason to be in the B3 lab on particular nights 12 years ago.

      Incredibly, as recently as October 2013, FBI WMD Vahid Majidi mistakenly thought the experiment was done at some other facility.

      Heck, if you google “wonderful” and “efficient” you will see what I think of the FOIA officer.

    • DXer said

      There were 29,556 entrances into BSL-3 and 4 labs in 2012 at USAMRIID.

      There were 51,000 entrances into BSL-3 and 4 labs in 2011.

      Because of USAMRIID’s failure to preserve contemporaneous and relevant documents — and its false denial of possessing documents it in fact does have — the DOJ was able to cobble together a theory that Bruce Ivins was guilty of murdering 5 people in 2001. The DOJ based its theory on a dozen or two time-card entries in August, November, December 2001 — and in September and October. According to attorney Paul Kemp, at the two meetings at which Bruce explained his time, the prosecutors did not even address the first week in October 2001. That focus was added only after Dr. Ivins’ death. see uploaded Kemp presentation at conference moderated by Lew.

      The prosecutors report that they were not persuaded by Ivins recollection as to the reason he was in the B3 lab. At the same time, DOJ and the FBI suppressed the documents and information relating to the reason Dr. Ivins had to be in the lab.

      With thousands of entries and selective production of documents, it was easy for the investigator and AUSA to find someone who could be cast as having had the opportunity. The fellow edited Wikipedia and had numerous screen names to boot. He even had stolen a sorority book a quarter century earlier, put shaving cream on a car, and used someone else’s name in a letter to the editor a quarter century earlier. His counselor pointing the finger at him published a book in 2009 saying that in 2000 she received her instructions each night from an alien about the murderous astral entities attached to her clients in her new part-time counseling gig.

      The DOJ’s proof? That the chemical compassion of RMR-1029 was different from the mailed letters and could not have been used. Someone had to have grown entirely new anthrax. (And we know Al Qaeda anthrax lab director Sufaat and his two assistants were growing entirely new anthrax in August 2001.)

      The proof? That Dr. Ivins could not have used the lyophilized that the US Attorney claimed in August that he used. See Little deposition. (And we know that Al Qaeda anthrax lab director Sufaat had drying equipment at the lab).

      The proof? That there was no specialized equipment in the B3 that could have been used to powderize the anthrax mailed. See Little deposition. And we know that Al Qaeda anthrax lab director Sufaat had specialized drying equipment.

      Those with access at USAMRIID had been narrowed from 1000 to up to 300 — and that was just at USAMRIID alone. The FBI, after the research with the 4 morphs was done, reported that it had narrowed the 16 labs to 4 labs — but could not rule out foreign lab. See MSNBC report. But after Dr. Ivins’ suicide, in a classic CYA move so common inside the beltway, the FBI and DOJ chose to spin the 4 morphs genetics work quite differently. Rachel and her colleagues spun it as the dispositive smoking gun when it in fact was less dispositive than numerous other forensic methods that the DOJ still has not disclosed or addressed. (For example, the mass spec on the toner excludes the USAMRIID photocopiers). See Bartick report.

      USAMRIID now falsely denies that it has a copy of Stephen Little civil deposition. That civil deposition addresses the reason Dr. Ivins would have had to be in the lab in September and October 2001. It is not subject to a protective order. There are no secrets.

      Is the world more or less safe due to the tens of thousands of entries at USAMRIID given that we see that USAMRIID doesn’t maintain proper record keeping necessary to ensure government accountability. And that we now see that some USAMRIID and USAMRC and Army decision-makers are so willing to join DOJ in a game of hide-the-ball.

      • DXer said

        Indeed, if USAMRIID does not maintain records of the Little civil deposition from a suit in which millions was paid because of USAMRIID’s alleged negligence in securing pathogens, then that without more is evidence of USAMRIID’s continuing negligence. An agency cannot very well benefit from lessons learned if it doesn’t have the study materials in its possession.

    • DXer said

      Machines of Loving Grace
      I’d rather risk becoming a terrorist’s victim than live under a surveillance state.

      • DECEMBER 9, 2013

      That the United States will suffer another major terrorist attack is certain. In the long run, determined, intelligent malice, coupled with the willingness to sacrifice one’s own life in the act, must now and then trump our defenses, which remain merely reactive. To be sure, proactive measures (such as drone strikes and commando operations) may prevent certain terrorist operations. All the same, we can only see and foresee so much. A lone-wolf suicide bomber retains the advantage.

      It follows that any rational policymaker would wish to know as much as possible about as many people as possible. A perfect extension of this aim would entail constant passive surveillance of everyone on Earth, with the capability of making that surveillance active and then employing lethal force as needed. As a Richard Brautigan poem has it, we would be “all watched over by machines of loving grace.”

      I myself would rather risk becoming a terrorist’s victim than live under any such system.

      NOT LONG AGO, THANKS TO A REQUEST MADE under the Freedom of Information Act (FOIA), I learned that I had been a suspect in the Unabomber case. You see, I had written a historical novel called Fathers and Crows, and the Unabomber’s moniker was FC. That book, by the way, exemplified my “anti-growth and anti-progress” themes, according to the (redacted) copy of my FBI file, because it was about 17th-century Iroquois. Even worse, “regarding airline-related targets, VOLLMANN’S extensive travel (beginning at age 5) would presumably cause interaction with airline industry.”

      In fact, some cursory investigation of my activities might not have been unreasonable. To carry out my journalistic work I have visited war zones, drug lords, and so-called “rogue states.” But the snoopers were more interested in my “anti-progress” themes.

      My file, which I wrote about in detail for Harper’s, indicates that the FBI surveilled and perhaps burgled my home. After the Unabomber was brought to justice, I became a suspect in the 2001 anthrax attacks, in part because I had been a former Unabomber suspect. Your tax dollars at work!

      – See more at:


      I think Mr. Vollmann’s case is overstated. It is the FBI’s job to leave no stone unturned. If they didn’t investigate possible hypotheses, they would not be doing their job. And he is the one who drew attention to the fact, he says, he once was briefly considered an anthrax suspect. The FBI had rolling lists of hundreds to work through in both the UNABOM and anthrax matters. And so basically it is marketing himself as a novelist and writer that prompts these disclosures — which is fine. I love articles on the subject. The issue serves as a news hook for his interesting policy commentary. And of course I’m a big fan of FOIA.

      But let’s not lose track that the FBI has a job to do. We have to be slow to put them in the position of being damned if they do, and damned if they don’t.

      Looking over their shoulder, we can simply work through the issues as they arise applying the legal standards that govern under FOIA, the Constitution, Title III, FISA etc.

      It helps to keep in mind, furthermore, that the DOJ and FBI have a large pool of candidates to draw from — and so they tend to have well-qualified people working for them.

      On surveillance, generally, I have mixed feelings. I think more cameras would be an effective deterrent to local crime.

      As for NSA, I agree that the technology got ahead of the policy and safeguards. But my only contact with NSA personnel evidenced the high caliber of their usual analyst.

      As for UNABOM, although Kacyznski in my opinion was making an open appeal to nordicist anarchists (see paras. 222, 227, 229), I of course think the FBI got their man. FBI agents, however, are quick to point out that prior to the search of Kacyznksi’s cabin and the call from Kacyznksi’s brother, I was wrong about the UNABOM. :0)

      In UNABOM, there was overwhelming evidence. In contrast, in Amerithrax, there was just innuendo heaped upon supposition premised on provably false assertions.

      In UNABOM, the decision to publish the manifesto is what led to his arrest. Kudos to his brother but especially the brother’s wife. In Amerithrax, DOJ and FBI’s withholding has allowed the cotton candy “Ivins Theory” to persist.

      I tend to favor efforts at a “group solve” by the disclosure of as much information as possible. If that requires steamrolling John Peterson’s false denial under FOIA that he doesn’t have a copy of the Stephen Little depo, so be it.

      If solving mysteries were easy, it wouldn’t be fun. When TSA suspects Manny Delgado (of the TV show MODERN FAMILY) of visiting Osaka (when he was 4), we can keep our sense of humor so long as USG corrects its course and lets Manny vacation with his family in Hawaii.

      A key element of democracy is to have mistakes fixed pursuant to the rule of law.

      • DXer said

        Mr. Vollmann complains of receiving mail that was slit open.

        In 1979 or so, there was an attempt to blow up a United Airlines flight.

        While there is no evidence that his mail had been opened due to any investigation — and he just presumes it — his balancing on the issue seems to be askew.

        He criticizes investigators for being wrong and yet bases his argument on very slight evidence.

        The priority is the protection of innocents on that United Airlines flight.

  2. DXer said

    There is an intense public interest in whether Dr. Bruce Ivins was in fact responsible for the Fall 2001 anthrax mailings — and, as part of that, whether his alibi that he was monitoring some animals in the Bacteriology B3 Suite is sound.

    Lt. Col. JEFFREY ADAMOVICZ: I said, “Bruce, you know, they say that you were keeping odd hours.” I said, “I know you work a lot, you, know odd hours. All of us do, you know. But do you remember, you know, what you were doing there? What were you doing?” He said, “Do you remember what you were doing in the suite 10 years ago?” You know?

    NARRATOR: In fact, FRONTLINE, ProPublica and McClatchy newspapers have taken a close look at Ivins’s lab work records. The FBI chart was based on the night hours in only one lab. But our research shows it was not unusual for Ivins to work late at the other labs and offices throughout the Army complex. And during those days the FBI found suspicious, Ivins was in fact conducting a number of time-sensitive experiments in the lab.

    HENRY HEINE, Ph.D., USAMRIID: He was in the middle of a very important vaccine test experiment. He had a series of animals that had been vaccinated, and so he was in there checking his animals.”

    The detailed B3 key card access records from September 28, 29 and 30 cannot be understood without knowing what animal room within the Bacteriology Suite B3 the mice were in.

    For example, under a different protocol during 2001, see, e.g.,

    The Passive Mouse Protocol Produced Today Under FOIA Confirms Dr. Ivins Was The Scientist Who Vaccinated And Then Challenged The Mice Under BSL-3 Level Conditions
    Posted by Lew Weinstein on December 23, 2011

    The FBI has produced the FBI documents showing Dr. Ivins gave a tour of the B3 pointing out where the guinea pig room was — pointing out where the mice room was. One was across from Patricia Worsham’s office in the Bacteriology Division B3. Another animal is nearby. Bruce’s office in the “hot suite” was Room 313. The floorplan as it existed in 2001 is a matter of public record. You can then see additional rooms within “Animal Resources” on the uploaded floorplan.

    Other protocols have been produced identifying the room used in a mice protocol the same year. That room was identified as Room 305.

    Under this Mice Protocol, The Animals Were Challenged In B-305 (which is in Suite B3) ; Under This Protocol, Dr. Ivins Was In The B3 Those Nights The AUSA And Investigators Mistakenly Suggested He Had No Reason To Be In That Biolevel-3 Lab
    Posted on January 1, 2012

    But whether on September 28, September 29 and September 30, the room was Room 310 or a room in Animal Resources, we won’t know unless it is redacted. On some nights, the records relating to door entries seem to have him going into Animal Resources after entering the B301 door. Detailed time records have been released for late September 2001 and early October 2001 showing what doors Dr. Ivins opened at what time.

    There is no operational security at issue. (Indeed, after reconstruction, I seriously doubt whether the layout is the same at all which would make invocation of the exemption especially frivolous and irresponsible). One animal room is the same as the other for these purposes and the public interest is immense. The denial on its face violates the law because there is no written determination that the public interest in being able to test Dr. Ivins’ offered alibi is outweighed by some operational security need. The issue of the mice on September 28, 2001, September 29, 2001, and September 30, 2001 is expressly discussed by the FBI in the Amerithrax Investigation Summary.

    In any lawsuit brought by local counsel in Maryland or D.C., or here in Syracuse, USAMRIID will be responsible for attorneys fees.

    The issue can be consolidated with USAMRIID’s your failure to provide Mr. Little’s civil deposition even though USAMRIID has a copy and he was the originator of the statement. USAMRIID has a copy provided by DOJ but had Mr. Little’s copy even before that. DOJ has confirmed to USAMRIID that there is no protective order that applies to the civil deposition. The 20 day time period for a “determination” has passed as to that deposition and there is no further exhaustion requirement.

    Most of all, when these sorts of obstacles are thrown up, USAMRIID becomes part of the problem and not the solution. I am disappointed the people making the decision did not roll up their sleeves and understand the unique circumstances and importance that this room number be disclosed. More than anyone, I favor operational security — and operational security in this instance requires allowing people to get “on the same page” as to Dr. Ivins claim he was monitoring some mice.

    Perhaps the folks at RIID, SJA, OPSEC and MEDCOM just don’t understand the nature of the passive mouse study and the public debate featured by Frontline, ProPublica and McClatchy as to what steps Dr. Ivins took when and what he was doing in late September 2001 and October 2001.

    Certainly, if USAMRIID had kept and made available documents — and not spoliated them — Dr. Ivins likely would not have been prevented from reconstructing his time and his suicide might have been avoided. For example, the animal cage cards for the rabbit experiment were thrown out in 2004.

    Similarly, Dr. Ivins was wrongly told that USAMRIID could not retrieve his emails. And as for decon records, the employee simply forgot to get them to him in time for his grand jury appearance.

    In connection with an IG report sought by McClatchy, internal documents show that the decision-makers recognized that the exemption did not properly apply but withheld it anyway.

    Taxpayers and the public deserve better than a failure to correctly apply (b)(3) in trying to get people on the same page as to how Dr. Ivins spent his time in the lab on September 28, 29, and 30, 2001.

    Thank you for months and years at fielding requests. Where the mice and rabbits, though, is where the rubber hits the road. It relates to the crux of demolishing what is left of the FBI’s cotton candy “Ivins Theory.”

    • DXer said

      Additional sources:

      a truly pathetic interchange of emails between Dr. Bruce Ivins and a colleague (name withheld by USAMRIID) in the spring of 2007
      Posted by Lew Weinstein on August 24, 2010

      “The public interest consideration in the disclosure of of such information outweighs preventing the disclosure of the information.”

      USAMRIID wrongfully destroyed the records relating the animals kept in Room 305 and 310 in 2001. In new FOIA Response, USAMRIID Reports It Could Not Locate The “Animal Room Environment Report” for B310 and B305 in Building 1425 for Sep – Oct 2001; Those Documents Would Provide Contemporaneous Descriptions Of The Exanguination Of 52 Rabbits During The Week That DOJ Had Speculated That Dr. Ivins Made A Dried Powder In That Suite. GAO: Does The FBI Have A Copy?

      Before Issuing Its Report, GAO Should Seek To Obtain “Animal Room Environment Report” for B310 and B305 in Suite B3, Building 1425 for September – October (for the guinea pigs, mice and rabbits attended to by Dr. Ivins in the B3 under the various protocols implemented those months); Used for each animal room, the forms provide space to record animal observations, cage sanitation schedules, and more.

      Posted by Lew Weinstein on January 2, 2012

    • DXer said

      The FOIA officer’s denial stated:

      “This request was sent to RIID, SJA, OPSEC and MEDCOM, your request has been denied by all using the attached (B)(3) exemption.”

    • DXer said

      By way of some historical background, this issue might previously have been litigated under Exemption 2. But that exemption was significantly narrowed in 2011 in Milner v. Department of the Navy.

      Exemption 2 After the Supreme Court’s Ruling in
      Milner v. Department of the Navy

      On March 7, 2011, the Supreme Court issued an opinion pertaining to Exemption 2 of the Freedom of Information Act, 5 U.S.C. § 552 (b)(2) (2006 & Supp. III 2009), that overturned thirty years of established FOIA precedents and significantly narrowed the scope of that exemption. See Milner v. Dep’t of the Navy, 131 S. Ct. 1259 (2011). This guidance will discuss the newly defined contours of Exemption 2 in the wake of Milner and will address possible alternatives that agencies can consider to protect sensitive information that is no longer covered by Exemption 2.

      The Supreme Court’s Decision

      At issue in Milner were maps and data detailing “’minimum separation distances’ for explosives’” which aid the Department of the Navy in designing and constructing storage facilities to hold weapons, ammunition, and other explosives which are stored at the Naval Magazine Indian Island in Puget Sound, Washington. Id. at 1263. A resident of Puget Sound had requested the maps and data, and the Department of the Navy had withheld them under Exemption 2 “stating that disclosure would threaten the security of the base and surrounding community.” Id. at 1264. The requester challenged the decision. The District Court for the Western District of Washington and the Court of Appeals for the Ninth Circuit both upheld the Navy’s decision to invoke what was commonly called “High 2.” See id. Specifically, the Ninth Circuit held that disclosure of the data and maps “’would risk circumvention of the law’ by ‘point[ing] out the best targets for those bent on wreaking havoc’—for example, ‘[a] terrorist who wished to hit the most damaging target.’” Id.(quoting Ninth Circuit opinion, 575 F.3d 959, 971 (9th Cir. 2009)).

      The Supreme Court granted certiorari citing “the Circuit split respecting Exemption 2’s meaning” and it reversed. Id. In a ruling that is limited to the scope of Exemption 2, the Supreme Court then held that “Exemption 2, consistent with the plain meaning of the term ‘personnel rules and practices,’ encompasses only records relating to issues of employee relations and human resources.” Id. at 1271. Utilizing that newly developed interpretation of the Exemption, the Court found that “[t]he explosives maps and data requested here do not qualify for withholding under that exemption.” Id. The case was then remanded back to the Ninth Circuit for consideration of the applicability of Exemption 7(F), 5 U.S.C. § 552 (b)(7)(F), to the data and maps. The Navy had asserted Exemption 7(F) as an alternative ground for protection of the material and that claim now remains open for the Ninth Circuit to address. See id.

      Exemption 3

      Second, Exemption 3 is another potential means for withholding sensitive information that is no longer covered by Exemption 2. Exemption 3 provides for the withholding of records that are themselves protected from public release by another statute. See 5 U.S.C. § 552(b)(3). To qualify under Exemption 3, the other statute must either 1) be an absolute prohibition on disclosure or 2) provide specific criteria for withholding or refer to particular types of records that should be withheld. 5 U.S.C. § 552(b)(3)(A). For any withholding statute enacted after the date of enactment of the OPEN FOIA Act of 2009, Pub. L. No. 111-83, 121 Stat. 2184, the statute must specifically reference Exemption 3 of the FOIA in order to qualify as an Exemption 3 statute.

      Agencies should first consider whether there is an existing Exemption 3 statute that affords protection to any information that no longer qualifies for protection under Exemption 2. In the absence of an existing Exemption 3 statute, agencies can consider seeking relief from Congress in the form of a new Exemption 3 statute. The Supreme Court itself recognized that Exemption 3 offers “Congress an established, streamlined method to authorize the withholding of specific records that FOIA would not otherwise protect.” Milner,131 S. Ct at 1271. Despite the difficulties inherent in passing new legislation, if an agency determines that certain categories of highly sensitive information will regularly be at issue in future FOIA requests, pursuing an Exemption 3 statute might be advisable.

    • DXer said

      Here is a picture of Ivins’ secured BSL-3 hot suite lab at USAMRIID produced under FOIA.

      Here is a picture of Ivins’ office produced under FOIA..

      Here is a picture of Ivins’ secure BSL-3 hot suite lab produced under FOIA.

    • DXer said

      The FOIA requires agencies to include in their annual FOIA reports “the number of occasions on which each statute was relied upon, a description of whether a court has upheld the decision of the agency to withhold information under each such statute, and a concise description of the scope of any information withheld. 5 U.S.C. § 552(e)(1)(B)(ii).

      Here is the Department of Defense Freedom of Information Act Annual Report for Fiscal Year 2012. It has a wealth of data relating to DOD disposition of FOIA appeals and includes case citations.

      Click to access DoDFY2012AnnualFOIA_Report.pdf

      2011 –

      Click to access DoDFY2011AnnualFOIA_Report.pdf

      2010 –

      Click to access DoDFY2010AnnualFOIA_Report.pdf

    • DXer said

      Relatedly, here is the Department of Defense Agency Chief Freedom of Information Act Officer Report For 2013. It is is issued by the Director of Administration and Management.

      Click to access 2013_ACFO_Report_FINAL_REPORT.pdf

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