CDC can be slow to release documents

On his first full day as president, Barack Obama issued a memo to all federal agencies reinforcing the importance of the Freedom of Information Act, the 1966 law that guarantees public access to government information.

But will it be enough to force the Atlanta-based Centers for Disease Control and Prevention to release records about lab safety problems, the recall of a childhood vaccine or how the CDC spent millions of taxpayer dollars on new buildings? Will it pry loose documents explaining how the agency misdiagnosed the severity of Andrew Speaker’s tuberculosis and failed to keep him from traveling?

Those are just a few topics of federal Freedom of Information Act requests The Atlanta Journal-Constitution has pending with the CDC. Although the CDC says it generally releases information in days, the agency often takes months or years to release potentially controversial documents to its hometown newspaper.

“A democracy requires accountability, and accountability requires transparency,” Obama wrote in his Jan. 21 memo.

“The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears,” the memo says.

In recent years, the CDC created a communications office with a stated mission that involves “environmental scanning to determine emerging threats to the agency’s reputation.”

Acting CDC Director Richard Besser is committed to improving the CDC’s responsiveness to Freedom of Information Act requests and being transparent, said CDC media relations director Glen Nowak.

Nowak said Besser plans to send a memo to staff, as early as this week, about the importance of responding to requests in a timely manner.

But the CDC is also looking for further direction from Justice Department lawyers on Obama’s new Freedom of Information policy. Until then, the agency — like all others — is operating under an October 2001 directive issued by then-Attorney General John Ashcroft.

Ashcroft’s memo directed agencies to emphasize protecting institutional, commercial and personal privacy interests, rather than focus on releasing information.

“There have been bumps on the road in the past as this agency has struggled with the Ashcroft memo and being transparent,” Nowak said.

The Freedom of Information Act presumes that federal records belong to the people and puts the burden on government to justify why they should not be released. The law allows information to be withheld for only a few, limited reasons, such as national security or to protect trade secrets or medical privacy.

The law was intended as a cornerstone of U.S. democracy, a tool to allow citizens to hold their government accountable. But a study last year by the National Security Archive at George Washington University found that often “the requester is treated as a nuisance rather than as a participant in a system of representative government.”

“Thus, requesters navigating the FOIA system regularly face roadblocks and lengthy delays,” it said.

Although the law requires agencies to respond within 20 days, requests can go nowhere for months or years, the researchers found.

Their survey of 90 federal agencies found a governmentwide backlog of 200,000 pending Freedom of Information Act requests, though the backlog varies widely by agency from just a handful to more than 80,000 requests.

The CDC, in compliance reports, says the median time it takes to process a simple freedom of information request is 11 days; complex requests take 38 days. Yet several AJC requests have been pending more than 12 months; some have languished for more than two years.

Meanwhile, documents leaked to the newspaper have shown the CDC has spent time assessing the public relations risks of releasing information to the AJC.

In late 2006, records show, the CDC assigned staff to analyze the “threats” to the agency if and when it released information requested by the AJC about a $10 million no-bid contract.

The AJC had filed a request for records about the deal, which involved a firm associated with and recommended by a volunteer adviser to then-CDC Director Julie Gerberding.

A copy of the risk analysis, leaked to the AJC, noted: “Negative publicity will further question top CDC management, as it was so involved in the early process.”

In January 2007, the AJC filed a request for all such CDC risk analyses relating to the newspaper’s information requests. The agency has released nothing so far.

The agency also hasn’t released documents requested two years ago about potentially questionable expenses in its massive construction project at the agency headquarters on Clifton Road.

The agency lists that request as “pending program search.”

Requests for documents about safety problems at the agency’s new $214 million Emerging Infectious Diseases Laboratory (filed in June 2007) and about lab incidents and accidents (filed in August 2007) also are listed as “pending program search.” The agency says it is still reviewing documents (requested in June 2007 and again in January 2008) about its performance — which Congress has criticized — in the Andrew Speaker TB case; and it is still searching for records about circumstances leading to a recall of a childhood vaccine (requested in December 2007).

The agency still hasn’t fully responded to some AJC requests for documents from the summer of 2006 about agency use of private jets, its awarding of cash bonuses and its performance during the Hurricane Katrina disaster.

In August 2006, the AJC requested a copy of the agency’s internal critique of its performance during Hurricane Katrina.

More than two years ago, the newspaper obtained and wrote about a leaked copy of the December 2005 Katrina report — which called the CDC’s response chaotic and criticized agency leadership. But the CDC continues to refuse to release the report. As of last week, CDC officials said, the report was still in “draft” form, but they thought it would be finalized and released soon.

THE RECORDS BELONG TO YOU

Federal and state open records laws allow any person to request documents and data from the government.

Reporters Committee for Freedom of the Press has easy-to-use guides to help journalists and citizens use federal and state open records and open meetings laws.

Georgia First Amendment Foundation has helpful information on the Georgia Open Records Act and Open Meetings Act, which apply to state and local governments, including sample request letters.

CHECK OUR SOURCES

• Text of the Freedom of Information Act

• President Obama’s 2009 FOIA memo

• Former Attorney General John Ashcroft’s 2001 FOIA memo

• Justice Department’s 1993 FOIA memo

• Mission statement of CDC’s Office of Enterprise Communication, which includes watching out for “emerging threats to the agency’s reputation”

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CDC’s GROWING FOIA BACKLOG

The Centers for Disease Control and Prevention receives relatively few Freedom of Information Act requests compared with some other federal health agencies. The U.S. Food and Drug Administration, for example, received more than 12,320 requests in 2007 and had an unprocessed backlog of 17,458 at the end of the year.

In late 2008 the CDC increased to nine, from five, the number of employees in its FOIA office processing requests. The agency expects to add two more employees later this year, spokesman Glen Nowak said.

Here’s how the CDC has performed on FOIA processing:

Fiscal year	New requests	Backlog at end of year	Median processing time
2007	1,059	403	simple requests: 11 days;
			complex requests 38 days
2006	1,019	245	28 days*
2005	1,161	221	30 days*
2004	1,003	196	36 days*
2003	942	172	42 days*
2002	927	136	34 days*
2001	1,013	61	30 days*

* All types of requests

Source: CDC FOIA compliance reports; 2008 information has not yet been released.

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The AJC wants to hear about your experiences trying to get information out of local, state or federal government agencies. We also want your ideas for what we should investigate next. Send e-mails to spotlight@ajc.com or call 404-526-5041.