CDC: Our facts are ‘no more than hypotheses later revised or rejected altogether’

Best part: the admission comes from a court trial that has recently been concluded, then put a lid on. I discovered this accidentally, while following other leads.

Please contemplate this most spectacular paragraph and then I’ll give you all the background info you need:

Regarding factual material within the document, the court finds that “[t]he CDC does not . . . justify its withholding based on inextricable intertwining of facts and opinions.”  “Rather, it defends the withholding because the facts about COVID-19 were changing frequently, and therefore any facts in the Media Strategy are ‘no more than . . . hypotheses advanced but later revised or rejected altogether.'”  “The CDC states that releasing such ‘seemingly factual statements’ would ’cause damage both to the agency – by contradicting and/or undercutting the more reliable information that it ultimately released – and to the public, by creating confusion and potentially sowing mistrust in the guidance provided by the CDC and other Federal agencies.'”  The court finds that “Defendants cite no law for the validity of such a justification under FOIA . . . and the Court is aware of none.”   Moreover, the deliberative process privilege focuses on whether disclosure would ‘expose an agency’s decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to perform its functions.‘”  “The CDC does not argue that disclosure of the facts would chill the CDC’s internal discussion.”  “Therefore, the Court rejects the agency’s justification for withholding the factual portions of the document.”

US DoJ, Knight First Amendment Inst. at Columbia Univ. v. CDC, No. 20-2761, 2021 WL 4253299 (S.D.N.Y. Sept. 17, 2021) (Torres, J.)

So this is part of the court ruling for the following case, filed early 2020, the funniest boomerang throw in a while:

The reason I call it a “boomerang throw” is because the case was obviously a politicized attack on Trump admin’s alleged dictatorial oversight on science. They meant to show CDC wants to do better and OrangeManBad is keeping them on a leash, preventing transparency.
But the solution to it blew up in Biden’s lap, exposing more of CDC’s foul plays when they least needed another public image blow.
I mean, could’ve blown up, if anyone made a fuss about this.

Below is how Deep State University aka Harvard presented the case in April 2020:

CDC Sued to Disclose Restrictions on Scientists’ Right to Speak

By Adam Toobin – Edited by Genie Gorbonosov

April 16, 2020

<< Complaint for Injunctive Relief, Knight Institute v. CDC (S.D.N.Y Apr. 2, 2020) (No. 20-2761), complaint hosted by the Knight Institute.

Demanding the Trump Administration make public any restrictions on when employees of the Centers for Disease Control and Prevention may speak to the public or the press, the Knight First Amendment Institute at Columbia University is suing to force compliance with an unanswered Freedom of Information Act request they filed on March 19.

The complaint follows an extended controversy over whether and to what extent governments may restrict public employees from speaking to the press on their personal views. Laden with free speech concerns, the issue demands heightened urgency in the context of a worldwide pandemic that has killed tens of thousands and sparked fierce debate about the role of political leaders and scientists in responding to the crisis.

Motivating the Knight Institute’s concern in this instance is a record of severe restrictions on the rights of government scientists to speak freely to the press. In 2017, Axios published an email from Jeffrey Lancashire, a public affairs officer, to the National Center for Health Statistics, announcing that for every employee of the CDC “any and all correspondence with any member of the news media, regardless of the nature of the inquiry, must be cleared through CDC’s Atlanta Communications Office.”

This policy may exacerbate fears that the White House has politicized the nation’s response to the pandemic and inhibited the voicing of alternate views that could shed light on the extent of the crisis, according to the Knight Institute’s complaint.

“According to recent news stories, scientists and health officials at the CDC must now coordinate with the Office of Vice President Mike Pence before speaking with members of the press or public about the pandemic,” the complaint reads. “These stories have raised concerns that public health experts who know most about the risks to the public are not being permitted to speak candidly and that the information the government is now conveying may be incomplete, inaccurate, or misleading.”

This lawsuit follows recent litigation that has raised questions about the current constitutional status of rights of public employees to speak to the press without official oversight. In 2006, the Supreme Court held in Garcetti v. Ceballos that speech by public employees should only receive First Amendment protection when they are communicating in their capacity as private individuals. However, in the 2014 case of Lane v. Franks, the Court held that “the mere fact that a citizen’s speech concerns information acquired by virtue of his public employment does not transform that speech into employee—rather than citizen—speech.”

Rather than facing doctrinal hurdles in overturning government restrictions on the right of public employees to speak, a recent law review article by Frank LoMonte, head of the Brechner Center for Freedom of Information, identifies the fact that public employees have had to put their careers and employment relationship in jeopardy in order to bring suit. LoMonte suggests that journalists and news organizations should have standing to challenge overbroad restrictions on the right of public employees to speak.

While still untested, the prospect suggests a new line of attack on the type of rules the CDC may be enforcing against its employees. The Knight Institute’s lawsuit may then be seen as the first step in raising a more fundamental question about the constitutionality of these restrictions.

On the alternative side, public health officials have also emphasized the importance of clear and trustworthy information reaching the public during a period of such acute national and international challenges. The spread of misinformation online has drawn particular concern and forced some social media platforms to take unprecedented steps to control what their users can see and share, including partnering with organizations like the CDC and the World Health Organization to verify the information blitzing around their sites. Multiple conflicting messages from government officials — not bound by tight central controls — could contribute to the public’s confusion.

Ultimately, the Knight Institute’s lawsuit focuses on a much more narrow question: Whether the government should be permitted to keep secret its rules for when government scientists may speak publicly. As the coronavirus pandemic enters a new month, long since having banished facets of everyday life once taken for granted, the issue takes on the weight of all those who worry everyday about the information they receive from the government and the media.>>

Fantastic presentation, Harvard!
Now, you know what’s way more stunning? Let’s have a look at the full court decision on this!

Friday, September 17, 2021

Knight First Amendment Inst. at Columbia Univ. v. CDC, No. 20-2761, 2021 WL 4253299 (S.D.N.Y. Sept. 17, 2021) (Torres, J.)



Re:  Request for certain records concerning coronavirus or Coronavirus Task Force, as well as records concerning communication with news media and public policies

Disposition:  Denying defendants’ motion for summary judgment; granting in part and denying in part plaintiff’s motion for summary judgment

  • Litigation Considerations, Adequacy of Search:  “The Court concludes that the CDC’s search for documents responsive to requests one and two was not reasonably likely to uncover all responsive documents.”  First, the court finds that “the CDC improperly narrowed the scope of [its] search, and shall reconduct it in light of this order.”  “Here, the plain language of the requests indicate that they encompass more than the CDC’s interpretation.”  “Requests one and two seek records ‘relating to’ policies and procedures, and so are broader than merely the policies themselves.”  Responding to plaintiff’s argument, the court finds that “courts have rejected the idea that including a specific request invalidates an overlapping broader request.”  Second, the court finds that “‘FOIA requests are not a game of Battleship.'”  “‘The requester should not have to score a direct hit on the records sought based on the precise phrasing of his request.'”  The court explains that “an agency must search for synonyms or common variants of a term used in the request that are likely to be used in responsive documents, unless it can reasonably justify declining to use them.”  “[T]he agency justifies its limitation of search terms as a means of ‘strik[ing] a balance between fully and completely capturing emails dealing with the subject matter of Plaintiff’s requests and eliminating the large number of nonresponsive emails captured by the first search.'”  “But, an agency’s duty under FOIA is not to strike such a balance; it is to conduct a search reasonably calculated to uncover all relevant documents, unless such a search would be an undue burden.”  Additionally, the court finds that “Plaintiff correctly observes that the agency’s affidavit does not give sufficient detail about how the search was conducted.”  “[I]t does not specify how Boolean searches were used:  for instance, if it searched for the two-word terms like ‘covid communication’ in quotes (producing only documents containing those two words in sequence), or not (producing documents with either one of those words anywhere in the document).”  “Without such detail, the Court cannot conclude that the agency demonstrated that the search terms were reasonably calculated to uncover responsive documents.”  Finally, the court finds that “CDC has given no reason it did not search the inboxes of the individuals identified by Plaintiff, which Plaintiff reasonably contends may contain responsive documents.”  “Therefore, it was unreasonable of the CDC to omit those individuals likely to have responsive documents from the search.”  Of specific note, the court finds that “Defendants . . . argue that the CDC’s search was reasonable despite the omission of [one individual], because the produced records demonstrate that her supervisor . . . ‘was included in all correspondence to or from [the omitted individual] concerning items 1 and 2 of Plaintiff’s request.'”  “However, this logic does not hold:  [the supervisor’s] inclusion on the emails uncovered by a search of her email inbox does not mean that [the omitted individual] did not send or receive other responsive emails which did not include [her supervisor].”  “Therefore, it is reasonably likely that [the omitted individual] has other, undiscovered responsive documents, and must be included in a reasonable search.”
     
  • Exemption 5, Other Privileges:  The court holds that “Defendants have not met their burden of demonstrating that the presidential communications privilege covers [two documents], given the scope of dissemination of those documents.”  The court relates that the two documents are “a February 25, 2020 email authored by . . . President Donald J. Trump’s then-acting White House Chief of Staff[] and sent to ‘Senior Government Officials,’ described as a ‘[p]roposed coordinated media communication strategy for COVID-19 with designated speakers for various issues/topics,'” and “a February 25 and 27, 2020 email chain involving [the then-acting White House Chief of Staff], described as an ‘[u]pdate and elaboration of proposed coordinated media communication strategy for COVID-19.'”  The court relates that “Plaintiff no longer disputes that these documents were properly authored by a member of the President’s staff.”  “However, Plaintiff disputes whether these documents were kept sufficiently confidential for the privilege to apply.”  The court finds that “[d]isclosure of the documents would not prevent the President from operating effectively.”  “The media strategy of an executive agency is not a quintessential presidential power like the removal power; it is and was performed without presidential input.”  “Nor would disclosing the documents undermine future presidential decision-making; as discussed below, the policies appear to have been forward-looking plans to coordinate strategy.”  “And finally, because the policies were distributed to more than just the President’s closest advisors, his ability to communicate his final decisions privately was not implicated.”  “Moreover, the documents were not treated as confidential for purposes of the privilege.”  “The documents were also distributed throughout the Executive Branch, including to individuals whom Defendants have not established are covered by this privilege.”  “Though Defendants state that the majority of the recipients were in the EOP, not all individuals in the EOP are within the narrow circle of the presidential communications privilege.”  “Finally, the documents appear to have been distributed to some of the recipients for a non-advisory purpose.”
     
  • Exemption 5, Deliberative Process Privilege & Other Considerations: The court denies defendants’ motion for summary judgment regarding “a ’02/25 – 02/26/2020 Division of Global Migration and Quarantine email chain . . .’ and the information withheld within them[,] [specifically,] ‘[d]iscussion of how to apply 02/25/2020 EOP email to Senior Government Officials.'”  The court finds that that material consists of “discussions of how to apply a binding policy, rather than conferring about developing that policy.”  “Therefore, any discussion of its application was post-decisional, and outside the scope of the privilege.”  The court relates that “Defendants . . . argue that [some of that material] was not an operative policy because on [a later date], a new email was sent, erasing the [earlier] framework.”  “However, although the Document 9 policy may have been temporaru, it is still a final decision while in effect.”  “In addition, the CDC has not sufficiently articulated a harm associated with disclosing [that material].”  “Defendants merely assert that disclosure of some of the documents withheld under the deliberative process privilege ‘could cause harm by chilling future free exchange of ideas and opinions by agency leadership on similarly sensitive matters.'”  “[T]his assertion is not specific enough to meet the FOIA requirements.”
     
  • Exemption 5, Deliberative Process Privilege & Litigation Considerations, “Reasonably Segregable” Requrements: Separately, the court considers a “a number of iterations of a document titled ‘CDC Communication and Media Strategy for the Coronavirus Disease 2019 Response.'”  The court relates that “the CDC avers that [one of these iterations, the only one plaintiff still challenges,] was ‘revised and circulated to help frame ongoing deliberative discussions within CDC for anticipated consideration by CDC decisionmakers,’ but that no Media Strategy was ultimately decided upon.”  “Plaintiff has identified a number of features of [the document] that suggest it is, at least, the closest to final version of the Media Strategy produced.”  Additionally, the court notes that “[p]roduced documents discussing the Media Strategy also indicate that the goal was ‘to finalize the first iteration of this strategy document,’ . . . which indicates that the CDC intended to create an operative version, even if that version was to be updated.”  Also, the court finds that “[t]he CDC also does not describe, specifically for Document 12, the author, its recipient, or those individuals’ relationships to each other and the decision-making process, details which have been considered ‘critical’ to a court’s analysis under the deliberative process privilege.”  The court also relates that “Plaintiff argues that [the document] should not be withheld because it is a ‘messaging’ document.”  “Though courts in this district are split over how to handle messaging documents, . . . the Court agrees that when considering documents ‘about how the agency should communicate its policies to people outside the agency,’ it must focus on ‘whether the drafts or communications reflect deliberations about what “message” should be delivered to the public about an already-decided policy decision, or whether the communications are of a nature that they would reveal the deliberative process underlying a not-yet-finalized policy decision.'”  “On this record, the Court cannot determine if [the document at issue] is merely articulating how to discuss agency policy, or if it is itself an expression of the CDC’s ‘essential policymaking role.'”  “Accordingly, the Court cannot yet decide whether [this document] falls into the deliberative process privilege.”

    Regarding factual material within the document, the court finds that “[t]he CDC does not . . . justify its withholding based on inextricable intertwining of facts and opinions.”  “Rather, it defends the withholding because the facts about COVID-19 were changing frequently, and therefore any facts in the Media Strategy are ‘no more than . . . hypotheses advanced but later revised or rejected altogether.'”  “The CDC states that releasing such ‘seemingly factual statements’ would ’cause damage both to the agency – by contradicting and/or undercutting the more reliable information that it ultimately released – and to the public, by creating confusion and potentially sowing mistrust in the guidance provided by the CDC and other Federal agencies.'”  The court finds that “Defendants cite no law for the validity of such a justification under FOIA . . . and the Court is aware of none.”   Moreover, the deliberative process privilege focuses on whether disclosure would ‘expose an agency’s decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to perform its functions.'”  “The CDC does not argue that disclosure of the facts would chill the CDC’s internal discussion.”  “Therefore, the Court rejects the agency’s justification for withholding the factual portions of the document.”

Updated November 4, 2021

You could start the Comedy Central Roast of CDC with that material.
Hey, Rand Paul, where art thou?


“Science will win”.

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