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Freedom of Information: Stalled at CDC and D.C. Government

In August 2009, CBS News made a simple request of the Centers for Disease Control and Prevention for public documents, e-mails and other materials CDC used to communicate to states the decision to stop testing individual cases of Novel H1N1, or "swine flu." When the public affairs folks at CDC refused to produce the documents and quit responding to my queries altogether, I filed a formal Freedom of Information (FOI) request for the materials. Members of the news media are entitled to expedited access, which I requested, since this was for a pending news report and on an issue of public health and interest.

The Obama administration made a commitment to a "new era of open government," as stated in a presidential memorandum on the Freedom of Information Act (FOIA). On March 19, 2009, Attorney General Eric Holder issued new FOIA guidelines to "restore the public's ability to access information in a timely manner."

Two months after my FOI request, the CDC has yet to produce any of these easily retrievable materials. Sadly, this is of little surprise. This has become standard operating procedure in Washington.

Watch: A CBS News producer asks CDC Director Dr. Thomas Frieden for information on H1N1 testing, Sept. 19

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Today, I received a letter from the CDC Freedom of Information office, which even by the normal baffling standards, borders on the absurd. The letter is to inform me that my request for "expedited" treatment of my FOI request has been denied because CDC has determined the request is "not a matter of widespread and exceptional media and public interest." report on H1N1

First, it seems ill advised to allow the responding agency (which often doesn't want the info released) to determine whether an issue is of media and public interest and, therefore, subject to expedited treatment. Further, the CDC may be the only agency on the planet to argue that testing and counting of swine flu cases is "not of widespread and exceptional media and public interest."

CBS News reporting on the topic has been quoted and reproduced internationally by news organizations such as California NPR, radio talk shows and others. [If you believe this matter is of public interest, you can express that view to CDC FOI Officer Lynn Armstrong or Katherine Norris at 404-639-7270 (recording) or 404-639-7395 (fax).]

By way of background, the Freedom of Information Act was a terrific idea intended to expedite release of public information to the public. It was supposed to stop federal agencies from using their power and control to withhold public information from the people who own it. However, in practice, most investigative journalists would probably tell you that the Freedom of Information Act is farcical. Many federal agencies use it to obstruct the delay or release of obviously public information. In short: they put your request (no matter how simple or urgent) at the end of an extremely long, mysterious cue and – if it is ever answered – it is either answered by a letter arguing the public materials can be withheld (therefore requiring an appeal); and/or it is answered months and often years later when the material obviously has lost its news value.

Here's another example of FOI law proving ineffective at producing results: this time within Washington D.C. government.

On June 22, there was a metro crash in Washington, D.C., that killed nine people and injured scores others. Shortly after the accident, DC Fire and EMS posted edited video of the scene and their response on YouTube. I filed a formal Freedom of Information request with DC Fire so for the entire, unedited videotape.

The original Freedom of Information request for DC Metro Crash video went unanswered. Numerous calls to follow up produced either false information ("There was no other videotape other than what was on You Tube."), or were ignored entirely. Eventually I contacted the DC Mayor's Office (where any appeal on Freedom of Information denials must be processed), but those contacts were likewise ignored. I finally followed the formal appeals process, which required notifying the mayor's office in writing as well as the responding agency. Once again: ignored.

Eventually, I made a query of the Attorney General's Office for the District of Columbia. They explained it was not their job to handle such matters. However, from what I was then told, I concluded that false information was being disseminated, including that I had been provided with some FOI materials. (I had not). I asked if I could file an ethics complaint since I believed that FOI law had not been followed and that DC employees had provided false information. I was put in contact with the FOI official with the Executive Office of the Mayor, who indicated she would look into the appeal.

Nothing has come of it.

Strangely enough, four months after I filed my FOI request, DC Fire released a "documentary training style" videotape of the Metro Crash. It included some of that videotape that is responsive to my FOI request (videotape I was told didn't exist). I sent an email asking about this but, apparently, this issue is back on "ignore" status.

As for the CDC? Their letter denying expedited treatment assures me they are "continuing to process" my request on a non-expedited basis.

Tick, tick, tick…

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