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

* DXer: FOIA request to USAMRIID is referred to CDC — “Sunshine” as “Disinfectant” ineffective

Posted by Lew Weinstein on June 12, 2015

Referral to CDC

Advertisements

9 Responses to “* DXer: FOIA request to USAMRIID is referred to CDC — “Sunshine” as “Disinfectant” ineffective”

  1. DXer said

    By letter yesterday, the CDC advised me that the request was being turned back to USAMRIID. (I had objected to CDC’s mistaken suggestion I was a commercial requester.). I had emphasized my request was made to RIID, not CDC.

  2. DXer said

    In key anthrax test, scientist just threw out test tube showing sample was alive – USA Today
    Alison Young, USA TODAY4:59 p.m. EDT September 17, 2015
    http://www.usatoday.com/story/news/2015/09/17/dugway-lab-anthrax-test-tube/32555249/

    The new details about the discarding of the test tube are part of 12 pages of redacted records released to USA TODAY by the U.S. Department of Health and Human Services Office of Inspector General. The inspector general handles enforcement actions for lab regulators at the CDC.

    The inspector general’s office said it identified 187 pages of records about the referral of Dugway for an enforcement action because of the 2007 incident. The office, however, said it was withholding 25 pages of records because of bioterrorism secrecy requirements and because some materials were pre-decisional. It released 12 redacted pages to USA TODAY. The rest of the records, because they originated at the CDC and the Army, will need to be released by them, the office said. As of Thursday afternoon, no additional records had been released.

    Comment: Remind me: How can the Army and CDC claim there is transparency when they refuse to provide docs pursuant to USA Today?

    CDC interposed itself in connection with a requested I made to USAMRIID regarding Dugway shipments — and prevented disclosure of the documents collected under FOIPA.

    If the CDC and Army want to play hide-the-ball, okay. That’s business as usual. But let there be no credit given for claims of transparency.

  3. DXer said

    USMRMC (the Army) refused to produce to me the documents relating to its shipments of anthrax — referring the request to CDC and then CDC claiming that I was not entitled to a fee waiver request because my interest was commercial.

    So when you read CDC / DOD claim it favors transparency, that’s total bullshit.

    CDC and the Army are in violation of FOIA.

    Judge Merick Garland, writing for the D.C. Circuit Court of Appeals, explains the applicable principles in the controlling August 25, 2015 decision.

    The Army should stop pretending it favors transparency in connection with the current difficulties about the shipping of anthrax when in practice it thwarts the transparency mandated by federal statute.

    At the very least, I should have been given the documents collected within the first two hours of search.

    Cause of Action v. Federal Trade Commission, (D.C. Cir. August 25, 2015)
    http://www.cadc.uscourts.gov/internet/opinions.nsf/EF1DE205B4E1264685257EAC004EF78C/$file/13-5335-1569545.pdf

    GARLAND, Chief Judge: Cause of Action (“Action”), a nonprofit organization, filed a series of three Freedom of Information Act (FOIA) requests with the Federal Trade Commission. The question presented is who should pay the costs of satisfying those requests. Action contends that FOIA entitles it to a complete waiver of the customary fees because “disclosure of the information is in the public interest,” 5 U.S.C. § 552(a)(4)(A)(iii). In the alternative, Action contends that it is entitled to a waiver of all but duplication costs because it is “a representative of the news media,” id. § 552(a)(4)(A)(ii)(II).
    The Commission and the district court rejected Action’s claims for fee waivers regarding its first and second FOIA requests, and then concluded that Action’s claims regarding its third request were moot. We conclude that Action’s claims regarding its third request were not moot, and that the case must be remanded for reconsideration in light of the entire administrative record and our clarification of the standards for FOIA fee waivers.

    FOIA permits an agency to exact a reasonable charge for “document search, duplication, and review, when records are requested for commercial use.” 5 U.S.C. § 552(a)(4)(A)(ii)(I). Certain categories of requests and requesters, however, are entitled to more favorable treatment. Two such categories are at issue in this case. First, an agency must furnish records without any charge or at a reduced charge “if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.” Id. § 552(a)(4)(A)(iii) (emphasis added). Second, an agency may charge only for duplication costs “when records are not sought for commercial use and the request is made by . . . a representative of the news media.” Id. § 552(a)(4)(A)(ii)(II) (emphasis added). Action asked the Federal Trade Commission (FTC) for fee waivers under both categories.

    ***

    The text of the public-interest waiver provision indicates that such a fee-waiver application must satisfy three criteria. Disclosure of the requested information must: (1) shed light on “the operations or activities of the government”; (2) be “likely to contribute significantly to public understanding” of those operations or activities; and (3) not be “primarily in the commercial interest of the requester.” 5 U.S.C. § 552(a)(4)(A)(iii).

    ***

    The FTC regulation cited by the district court does require a requester to show that the information it seeks would increase the understanding of the public “at large.” 16 C.F.R. § 4.8(e)(2)(i)(C). But FOIA itself does not. The statute requires only that the disclosure be likely to contribute significantly to “public” understanding. 5 U.S.C. § 552(a)(4)(A)(iii). Nor does the statute require a requester to show an ability to convey the information to a “broad segment” of the public or to a “wide audience.” To the contrary, we have held that “proof of the ability to disseminate the released information to a broad cross-section of the public is not required.” Judicial Watch, Inc. v. Dep’t of Justice, 365 F.3d 1108, 1126 (D.C. Cir. 2004); see Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 814-15 (2d Cir. 1994) (rejecting the assertion that, because a scholar’s proposed articles would not “reach a broad cross-section of the public” or “a general audience,” his request did not come within the public- interest provision).

    We recognize that the requirement that disclosure of the requested information be “likely to contribute significantly to public understanding” defies easy explication. Application of this criterion may well require assessment along two dimensions: the degree to which “understanding” of government activities will be advanced by seeing the information; and the extent of the “public” that the information is likely to reach.4

    ***

    It is still the case, of course, that a requester is ineligible for a waiver if the requested information will be to its benefit alone. The statute requires, after all, that the information contribute to public understanding. 5 U.S.C. § 552(a)(4)(A)(iii); see Forest Guardians v. U.S. Dep’t of Interior, 416 F.3d 1173, 1179 (10th Cir. 2005) (“FOIA fee waivers are limited to disclosures that enlighten more than just the individual requester . . . .”). But since the 1986 amendments, it no longer matters whether the information will also (or even primarily) benefit the requester. Nor does it matter whether the requester made the request for the purpose of benefiting itself. The statutory criterion focuses only on the likely effect of the information disclosure.

  4. DXer said

    CDC responded today to my FOIA:

    “This letter is in response to your Freedom of Information Act (FOIA) request of June 12, 2015, regarding any records related to shipment of anthrax from Dugway Proving Ground to USAMRIID. Your request was referred to the Centers for Disease Control and Prevention and Agency for Toxic Substances and Disease Registry (CDC/ATSDR) by the U.S. Army Medical Research and Materiel Command for our direct response to you because the subject of your request pertains to CDC records. Your request has been assigned #15-00736-FOIA. You may check on the status of your case by going to our FOIA webpage at www2a.cdc.gov/od/foiastatus and entering this number. The fiscal year is the first two numbers and the request ID is the second set of numbers.

    Your request has been received by the CDC/ATSDR and will be sent to the area(s) which may have pertinent records. Program officials will initiate a search, and we will provide a copy of all releasable agency records as quickly as possible. The cut-off date for your request will be the date the search for responsive records is initiated by program staff. All requests are handled on a first-in, first-out basis.

    Please note that the records you seek are maintained outside of this office and our staff has not yet been able to complete a search to determine whether there are records within the scope of your request. Accordingly, we will be unable to comply with the twenty-working-day time limit in this case, as well as the ten additional days provided by the statute. The actual processing time will depend on the complexity of your request and whether sensitive records, voluminous records, extensive search, and/or consultation with other Department of Health and Human Services (HHS) components or other executive branch agencies are involved.

    You can learn more about the FOIA and the HHS FOI regulations at the following web address: http://www.justice.gov/oip/ and http://www.hhs.gov/foia/45cfr5.html.

    The FOIA and HHS FOI regulations allow agencies to recover part of the costs of processing FOIA requests. There may be a charge for these records. You have been classified as a Category 1 requester and will be charged for search time over two hours. Because you have agreed to accept any responsive records via electronic means, there will be no charge for page duplication.”

  5. DXer said

    I have previously noted the precedent which explains why CDC’s invocation of FOIA exemption 7(a) — if made — will be inapplicable under the judicial precedent for documents not involving correspondence with the CDC. My request was made to USAMRIID. It was a request made for the contemporaneous documents. That FOIA exemption 7(a) relates only to documents compiled for law enforcement purposes. (Even construing the exemption to include documents compiled for regulatory purposes, it does not apply to a request for the original documents where the request was made to USAMRIID.

    But don’t misunderstand me. CDC is no slouch when it comes to complying with FOIAs for Amerithrax documents. CDC has already provided me 2000 pages. So I am just noting that invocation of 7(a) would not be well-founded under the precedent I’ve cited elsewhere.

    But let’s consider the documents relating to transfer or storage and usage of virulent Ames that was genetically matching to the virulent Ames mailed in Fall 2001– to see how it has been wrongfully withheld by the FBI.

    The documents wrongfully withheld by the FBI include, for example, three notebooks: to include Lab Notebook 3655, 3945 and 4251.

    Lab Notebooks 3655 and 3945 were never returned to USAMRIID as far as I know. (I’ve recently linked the relevant email by email explaining which notebooks had not yet been returned).

    I think USAMRIID actually has the third notebook, 4251, and simply has inadvertently failed to produce it.

    To clarify the state of withholding — and figure out who remains responsible for any continuing withholding — this morning I submitted the following request to USAMRIID.

    “[To USMRMC official whose duties include FOIA):

    I would like to request Lab Notebook 3655, 3945, 4251

    At one point, the notebooks had not yet been returned by the FBI.

    The notebooks are extremely important because they all referenced a transfer of Ames from Flask 1029 (according to the FBI). (Ivins’ Flask 1029 is alleged to have been genetically matching the anthrax mailed in Fall 2001.)

    There is a possibility that the notebooks were never returned by the FBI.

    In the event, USAMRIID still does not have a copy, I would like to request any and all document referencing the title of the notebooks (sufficient to indentify what each notebook concerned and its date of creation). Perhaps there in an index of notebooks that would contain an entry listing the subject of Lab Notebook 3655, 3945 and 4251.

    Thanks so much.”

    I then clarified:

    “To be more precise and in support of a fee waiver, the FBI notes that Lab Notebook 3945 and 4251 were among the notebooks evidencing transfers from Ivins Flask 1029.

    Lab Notebook 3655, in contrast, related to Flask 1030, which also was genetically matching and had a silicon signature.

    I note the above only to underscore the public interest underlying the request in support of a request for a fee waiver.

    The effort continues to relate to getting the public “on the same page” as to the Fall 2001 anthrax mailings.

    None of the notebooks have previously been produced — and none are available in USMRMC’s excellent FOIA website.”

  6. DXer said

    In 2008, USAMRIID was back irradiating Ames anthrax spores with 4 million rads even after the repeated failure in 2007 at 6 million rads.

    https://mrmc.amedd.army.mil/content/foia_reading_room/Batch78/20070611_batch78(redacted).pdf

    But at least Ivins in 2008 recognized that a 50% check of samples leaves us “better safe than sorry” (as opposed to the insistence that only 10% was necessary

    https://mrmc.amedd.army.mil/content/foia_reading_room/Batch85/20080312_batch85(redacted).pdf

    Hint: You will want to request Irradiation Form (FC-10-01.F1) If CDC invokes FOIA 7(a), you should appeal and then bring suit.

    • DXer said

      Bruce Ivins was receiving his Ames spores from Dugway. Ironically, the concern was that Fed Ex was irradiating them — resulting in irradiated spores when virulent spores were intended.

      https://mrmc.amedd.army.mil/content/foia_reading_room/Batch85/20080312_batch85(redacted).pdf

      From: (b) (6)

      Sent: Thursday, May 27, 2004 2:01 PM
      To: Ivins, Bruce E Dr USAMRIID Cc:
      Subject: Fed Ex Irradiation

      FYI,

      We just learned from (b) (6) that Fed Ex is irradiating many packages they handle. This issue was announced at a NIH meeting she attended last week where (b) (6) of the University of North Carolina Vaccine Center reported that they were losing shipped specimens due to FedEx irradiation procedures being used at the regional distribution centers.

      How are the Dugway spores shipped to us? What carrier is routinely used? I want to make sure that our products are not in any way being affected by this. I’m working with our shipping folks on this and will keep you posted.

      Bruce,

      You had notified me on May 10th that another shipment of spores should be arriving from Dugway. Did you receive them? I’m afraid to ask, but did any batch records arrive with them?

      Also, if we are to proceed with scheduling facility audits at Dugway and Battelle, please contact

      (b) (6)

      (b) (6)

      (b) (6)

      (b) (6)

      (b) (6)

      Thanks,

  7. DXer said

    When sunshine doesn’t always disinfect the government

    http://www.washingtonpost.com/opinions/laws-aimed-at-transparency-have-hindered-serious-debate/2014/10/02/7c5eb022-48dd-11e4-b72e-d60a9229cc10_story.html

    By Jason Grumet October 2, 2014
    The writer is president of the Bipartisan Policy Center.
    This summer, 40 years after Richard Nixon resigned in disgrace over Watergate, the onetime White House counsel who famously called the scandal a “cancer on the presidency” surfaced with a new book. In “The Nixon Defense,” John Dean revisited the coverup with an examination of more than 600 additional tapes from Nixon’s secret recording system. The verdict: The 37th president was even guiltier than we all believed.

    But it’s time to revisit something else from that era: the reforms inspired by the mistrust of government that Watergate helped engender.

    Following the deceptions of Vietnam and Nixon’s secret war in Cambodia, the Watergate scandal deeply wounded our nation’s faith in government. The campaigns for “good government,” aided by the conservative notion that “government is the problem,” propelled a series of reforms aimed at transparency, openness and the monitoring of decision-making.

    These reforms included the passage or strengthening of the Freedom of Information Act (FOIA), Government in the Sunshine Act and the Federal Advisory Committee Act, as well as a series of changes in the congressional committee process. They had a noble purpose: to restore public confidence in government by providing insight into its workings and greater access to the deliberative process.

    But while openness is indeed key to a functioning democracy, there is a dark side to sunlight. Deliberation, collaboration and compromise rarely flourish in front of TV cameras or when monitored by special interests. Most government staff now operate under the principle of “don’t write that down” and avoid raising concerns and challenging questions altogether for fear that they will be publicly revealed to embarrassing effect. Even text messages are targeted and, given the capability to digitize phone conversations, there could soon be even less room for private thought and consideration.

    The opposite of transparency is privacy, not corruption. Despite the scars of past scandals, we must recognize that there are moments in government where the imperative for deliberation trumps the imperative for access.

    Moreover, transparency rules are rarely used by John and Jane Q. Public. They are now part of the standard tool kit of highly organized special interests and activists on the left and right. The great challenge in Congress today is finding leaders with the courage to balance the desires of narrow interests with the broader national interest. It is a lot tougher to summon the courage to explore bipartisan collaboration with one’s most intense constituents always peering over one’s shoulder, intent on punishing any violations of orthodoxy.

    Most discouraging, the pursuit of ever-increasing transparency has not coincided with increased confidence in our government. A USA Today/Bipartisan Policy Center poll last year found that 77 percent of the public believed that it could trust the government in Washington to do what is right “only some of the time” or “none of the time” — an extraordinary indictment of a broken political system.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

 
%d bloggers like this: