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Using FOIA to Compel Federal Agencies to Prove Claims

Aug. 23, 2022, 8:00 AM

Since December 2020, the Centers for Disease Control and Prevention has recommended that Americans receive one or more doses of a Covid-19 vaccine. The agency’s director, Rochelle Walensky, promotes these vaccines at every available opportunity, always claiming that these products are, of course, “safe and effective.”

To encourage every American to get vaccinated, the CDC regularly reassures Americans about these novel medical products.

For example, when questions arose about the mRNA and viral vector technologies, the CDC told the public that Covid-19 vaccines “do not change or interact with your DNA in any way.” When asked through a Freedom of Information Act Request for “all documents relied upon” by the CDC in making that claim, the CDC responded, “A search of our records failed to reveal any documents pertaining to your request.”

Similarly, in the more recent environment of ever-changing variants of SARS-CoV-2, which prompted renewed public health measures and updated “boosters,” the CDC made the following claim to the public: “FACT: COVID-19 vaccines do not create or cause variants of the virus that causes Covid-19.”

But, when asked through the FOIA request for all documents sufficient to support that statement, the agency responded that it has no records pertaining to the request.

The agency’s failures to produce records in response to these FOIAs mean either the agency is acting recklessly with the public trust because it has no records that support the statements it wants the public to rely on, or the agency has responsive records but, for some reason, is not producing them. Either scenario is troubling and raises numerous questions and ethical issues.

Data Should Be Accessible

For more than two years now, while federal health authorities have campaigned for universal vaccination, they have also implemented policies that invade our cherished individual rights. Some physicians and the public often criticize these “health” recommendations and policies for being based on claims that are unsupported by evidence

At the very least, data, analysis, or a written record or report should provide the foundation for health authority claims and policies. Fortunately, the federal FOIA provides the public with a powerful tool to learn what, if any, evidence federal authorities relied upon when making policies.

FOIA was designed to shed light on federal agency action, which by law must have a rational connection between the facts found and the choices made. In fact, federal law prohibits agencies from making decisions that are arbitrary and capricious.

Under that standard, courts regularly overturn agency actions that are not grounded in the facts. As repeated scandals have shown, the most powerful way the public can confirm that an agency decision is rationally connected to the facts, and therefore not arbitrary or capricious, is by compelling the agency through legal action to produce the information underlying its claims or policies.

Disclosure on Vaccine Authorization

Our law firm regularly uses FOIA as a tool to pull back the curtain on our government. The importance of FOIA was recently highlighted when the Food and Drug Administration approved BioNTech’s and Pfizer’s Covid-19 vaccine Comirnaty®.

At the same time, that vaccine—and its purported efficacy—were being debated worldwide and the FDA refused to release the agency records underlying its licensure.

Our firm used FOIA to force the government’s hand to provide transparency through the disclosure of those documents. In overruling the FDA’s objections, and directing prompt disclosure of hundreds of thousands of pages of data, the US District Court for the Northern District of Texas noted that “open government is fundamentally an American issue.”

The court continued by explaining that “John F. Kennedy likewise recognized that ‘a nation that is afraid to let its people judge the truth and falsehood in an open market is a nation that is afraid of its people.’”

Agency Duty Under FOIA

Under FOIA, as recognized by the court, agencies have the responsibility to conduct an adequate search of their records, both made and received by them, and to respond to every proper document request. This requires agency FOIA officers to seek out agency personnel with the appropriate subject-matter expertise to find the requested material.

Ignorance is not an excuse for an agency to deny a FOIA request. Thus, when an agency responds to a FOIA request by saying it has no records to support its claims, that fact alone is very telling and can justify public pushback against the agency action at issue.

Until there is a better solution, FOIA is the most valuable tool the public has to reveal our government’s actions. The process also reveals information that’s necessary to hold agency decision-makers accountable for their claims, recommendations, and policies that often have serious implications for everyday life in this country.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Author Information

Aaron Siri is the managing partner of Siri & Glimstad LLP and has extensive experience in a wide range of complex civil litigation matters, with a focus on civil rights involving mandated medical procedures, class actions, and high-stakes disputes.

Elizabeth A. Brehm is a partner at Siri & Glimstad LLP and has extensive experience in civil litigation including matters involving mandated medical procedures and class actions.

Catherine Cline is an attorney at Siri & Glimstad LLP with experience in vaccine policy work and related litigation.