EXPEDITE REQUEST: Matters of COVID-19 testing (Centers for Disease Control and Prevention)

Brandon Smith filed this request with the Centers for Disease Control and Prevention of the United States of America.
Tracking #

#20-00954-FOIA

Multi Request EXPEDITE REQUEST: Matters of COVID-19 testing
Due March 31, 2020
Est. Completion None
Status
Awaiting Response

Communications

From: Brandon Smith

To Whom It May Concern:

Pursuant to the Freedom of Information Act, I hereby request the following records:

1. Documents sufficient to show who made the decision to reject the WHO-approved test for COVID-19 at use elsewhere in the world in favor of an American-manufactured test for the disease.

2. Documents sufficient to show the entirety of the guidance and evidence received by the decision-maker cited above prior to their making the decision. This includes all communications and all memoranda (if the two are considered different) issued to the decision-maker on the topic, or issued to a subordinate of the decision-maker who was tasked with reviewing internal communications/memoranda on the topic.

3. Documents sufficient to show any reasoning the decision-maker gave to his or her colleagues and/or subordinates upon announcing his or her decision.

4. Documents sufficient to show any communication the decision-maker had about this topic wherein the possible consequences of this decision were discussed. For this part of the request you may use the date range January 21, 2020-March 2, 2020.

5a. (~Only for use by CDC~) Copies of all written communications that CDC Director Redfield or his office had with the office of President Donald J. Trump, or the office of the Vice President Mike Pence, about the rejection or refusal of the test in use by WHO. Also I request copies of all written communications that CDC Director Redfield or his office exchanged with any manufacturer regarding a COVID-19 test. For this part of the request you may use the date range January 21, 2020-March 2, 2020. For my request to HHS, please interpret this part of the request to mean 5b:

5b. (~Only for use by HHS~) Copies of all written communications that HHS Secretary Azar or his office exchanged with the office of President Donald J. Trump, or the office of the Vice President Mike Pence, about the rejection or refusal of the test in use by WHO. Also I request copies of all written communications that HHS Secretary Azar or his office exchanged with any manufacturer regarding a COVID-19 test. For this part of the request you may use the date range January 21, 2020-March 2, 2020.

Please note that myriad caselaw supports the opinion that using exemption b(5) for "predecisional-deliberative" material does not apply to statements of fact. Only statements of opinion by the author of a document may be exempted and thus carefully redacted, leaving all statements of fact—and only then may redactions be made if the author is a government official, and only then if the opinion recommends a course of action contrary to the one that was taken.

In other words, since these decisions have been made and made public, opinions that recommended the course of action that *was* taken may no longer be exempted. And again, all statements of fact must not be redacted. I intend to fully assert my rights to these documents under the law and established caselaw referenced herein. For a full view of the caselaw surrounding the predecisional-deliberative exemption, see the handy compendium at this web URL: https://foia.wiki/wiki/Deliberative_Process_Privilege

I also request:

6. Documents sufficient to show who made the decision to limit CDC-sponsored, CDC-conducted, or CDC-overseen testing of COVID-19 to individuals who had traveled to China or who had come into direct contact with someone who had a confirmed case of COVID-19.

7. Documents sufficient to show the entirety of the guidance and evidence received by the decision-maker cited in request (6) prior to their making the decision. This includes all communications and all memoranda (if the two are considered different) issued to the decision-maker on the topic, or issued to a subordinate of the decision-maker who was tasked with reviewing internal communications/memoranda on the topic. This necessarily includes all communications between the office of the decision-maker (in #6) and the offices of either President Donald J. Trump or Vice President Mike Pence.

8. Documents sufficient to show any reasoning the decision-maker (in #6) gave to his or her colleagues and/or subordinates upon announcing his or her decision.

9. Documents sufficient to show any communication the decision-maker (in #6) had about this topic wherein the possible consequences of this decision were discussed. For this part of the request you may use the date range January 21, 2020-March 2, 2020.

10. All written communications that contain reference to, or are otherwise about, a particular press conference on COVID-19 (and/or the virus that causes it) that was set for March 2, 2020 and abruptly canceled that day. This request can be limited to the dates February 29, 2020-March 2, 2020, and limited to communications sent and received by the official (or officials) who made the decision to cancel the press conference. This necessarily includes all communications between the office of the official (who made the decision to cancel the conference) and the offices of either President Donald J. Trump or Vice President Mike Pence.

11. All written communications (including guidance and/or memoranda, being aware of the b(5) restrictions cited above) that contain reference to, or are otherwise about, the decision to remove statistics from CDC's COVID-19 web page, particularly statistics on "Total tested" (persons) and "Total deaths". This request has no date range associated with it. This request necessarily includes all communications between the office of the official (who made the decision to remove the statistics) and the offices of either President Donald J. Trump or Vice President Mike Pence, should either of those offices have been involved. This request is equally applicable to the Department of Health and Human Services if any of its staff, including its Secretary, had any involvement in the decision.

I am a journalist with 13 years' publishing experience and publishing privileges at many national and local outlets, including the Washington Post, whom I am keeping briefed on my reporting on this matter. This request is fully in service of my work as a professional journalist in the public interest, and for no other reason.

REQUEST FOR EXPEDITED PROCESSING

I hereby petition and argue that this request should receive expedited processing. The FOIA, at Subsection 552(a)(6)(E), states that agencies "shall" provide expedited processing upon a sufficient demonstration of "compelling need" in the public interest. The two acceptable definitions of such "compelling need" are spelled out in 5 U.S.C. § 552(a)(6)(E)(v), and I will quote them here:

(I) that a failure to obtain requested records on an expedited basis under this paragraph could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or
(II) with respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity.

I submit that knowledge about how the agencies charged with handling outbreaks of fast-transmitting diseases do their jobs regarding those diseases is both:

1. a matter of protecting imminently-threatened life and physical safety of individual(s), as according to public statements of CDC scientists, it is altogether possible that hundreds, thousands, or tens of thousands of U.S. residents may contract extreme illness or die based on the way the public health situation is managed; and

2. demonstrates an urgency to inform the public concerning (actual) federal government activity. And there is no question, considering my past and present career as a journalist (and indeed my interaction with Washington Post editor Eric Rich on this story), as to whether I am a person primarily engaged in disseminating information.

As for the definition of "urgency," such as in (II) above, courts recognize the following as definitions:

“the request concerns federal government activity,”
“the consequences of delaying a response would compromise a significant recognized interest,”
“the request concerns a matter of current exigency to the American public."

My requests above do concern federal government activity, and the "significant recognized interest" herein is the breaking news story inherent in information about a virus outbreak, consistently among the top most-viewed stories on news sites this month. As for "current exigency," this means that the matter must be currently happening or ongoing. The virus and COVID-19 illness certainly meet that standard, but a FOIA responder might consider another public health case, of arguably smaller scope, which nonetheless a judge found qualified for expedited processing:

"...a court cited public health concerns in finding an urgent need for drug data received by the FDA in relation to the agency’s ongoing investigation into a possible connection between an anti-epileptic drug and suicide-related events involving those taking the drug." Bloomberg, L.P. v. U.S. Food & Drug Admin., 500 F.Supp.2d 371, 378 (S.D.N.Y. 2007)

For further reading about that which qualifies for expedited processing, see the web page at this URL: https://foia.wiki/wiki/Expedited_Processing

An agency must make a determination with respect to a request for expedited processing within 10 calendar days. If an agency grants a request for expedited processing, it must process the request "as soon as practicable."

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter.

I look forward to receiving your response to this request within 20 business days, as the statute requires.

Sincerely,

Brandon Smith

From: Centers for Disease Control and Prevention

March 24, 2020

Request Number: 20-00954-FOIA

Dear Mr. Smith: This is regarding your Freedom of Information Act (FOIA) request of March 18, 2020, assigned #20-00954-FOIA.

Please see the attached letter.

Sincerely,
Leigh Davidi
CDC/ATSDR FOIA Office
770-488-6298

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