Republican senators have sent a letter asking their Democrat counterparts to subpoena Covid-19-related information that several federal agencies are withholding from the public.
The Republicans are appealing to Democrats because Republicans are in the minority in Congress and, in this instance, do not have the power to issue subpoenas to force agencies to produce records. When federal agencies ignore Congressional oversight requests or demands– as they often do, whether Democrats or Republicans are in charge– there’s little action that the party that’s not in the majority can take.
In this instance, Sens. Ron Johnson (R-Wisc.), the lead Republican on the Permanent Subcommittee on Investigations; Rand Paul (R-Kentucky.); James Lankford (R-Okla.); Rick Scott (R-Florida); and Josh Hawley (R-Mo.) are asking Sen. Gary Peters (D-Michigan) to “hold the Biden Administration accountable and show support for Congress’ right to information” by serving subpoenas on the Department of Health and Human Services (HHS), the Centers for Disease Control (CDC), and the National Institutes of Health (NIH).
According to the Republicans, the agencies have refused to provide full information regarding any coordination between the CDC, the American Federation of Teachers, and the National Education Association in drafting federal school reopening guidance. Likewise with their request for unredacted copies of emails belonging to White House Covid-19 adviser Dr. Anthony Fauci.
Fauci publicly discredited the idea that Covid-19 originated in a communist Chinese lab, without disclosing his own role in funding (with U.S. taxpayer money) and partnering with the lab and its scientists in controversial research involving bat coronaviruses.
Read and Watch: Separating fact from rumor on Covid-19 origins.
The senators are also questioning information the federal agencies have redacted to date, pointing to some of it that does not appear to meet the exemption threshold.
They are asking Democrats to subpoena the information.
You can read the information released by the senators, as well as their letters, below.
Senators Johnson, Paul, Lankford, Scott and Hawley Demand Chairman Peters Hold Biden Administration Accountable, Serve Subpoenas to Get Answers for the American People
Agencies refuse to be transparent and responsive to requests from Congress
WASHINGTON – On Thursday, Sen. Ron Johnson (R-Wis.), Ranking Member of the Permanent Subcommittee on Investigations, along with Senators Rand Paul (R-Ky.), James Lankford (R-Okla.), Rick Scott (R-Fla.), and Josh Hawley (R-Mo.) wrote a letter to Sen. Gary Peters (D-Mich.) regarding letters sent to the Department of Health and Human Services (HHS), the Centers for Disease Control and Prevention (CDC), and the National Institutes of Health (NIH) in which they invoked a statute requiring those agencies to respond to the requests. To date, the agencies have refused to comply with requests despite the statutory obligations to do so. The senators are demanding Chairman Peters hold the Biden administration accountable and show support for Congress’ right to information. They request he initiate proceedings to serve subpoenas to compel compliance from the agencies.
In a May 19 letter, the senators requested all documents relating to coordination between the CDC, the American Federation of Teachers, and the National Education Association in drafting federal school reopening guidance. In the June 11 letter, the senators requested the HHS and the NIH produce unredacted copies of Dr. Anthony Fauci’s emails.
“These agencies’ apparent contempt for legitimate congressional oversight and the law is unacceptable,” the senators wrote to Chairman Peters. “This administration cannot be allowed to ignore congressional oversight nor determine what information is fit for Congress’ review. We must ensure that all federal agencies are fully transparent and responsive to this Committee’s requests, particularly when the members invoke 5 U.S.C. § 2954. We call on you to stand up for this Committee’s and Congress’ constitutional and statutory authority and respectfully request that you initiate proceedings to serve subpoenas to HHS, CDC, and NIH to compel compliance with our lawful demands stated in our May and June letters.”
Further, on July 27, 2021, the HHS sent what it claimed was the same heavily redacted documents it already released through the FOIA process. However, after an initial review of the Fauci documents, it appears that the HHS may have forgotten to apply at least one FOIA redaction to a paragraph in an email. In the public FOIA document, the HHS redacted an entire paragraph in Peter Daszak’s email, claiming that it contains records related to an open law enforcement investigation.
However, in the documents the HHS produced, the paragraph was unredacted, exposing the information the HHS previously hid from the American people. The paragraph does not appear to contain any information related to an open law enforcement investigation. The redaction calls into question the HHS’s redaction process not only for FOIA requests from the public but also for documents produced to Congress.
A copy of the letter can be found here and below.
July 29, 2021
The Honorable Gary Peters
Chairman
Senate Committee on Homeland
Security and Governmental Affairs
340 Dirksen Senate Office Building
Washington, DC 20510
Dear Chairman Peters:
We have sent two letters to the Department of Health and Human Services (HHS), the Centers for Disease Control and Prevention (CDC), and the National Institutes of Health (NIH) invoking 5 U.S.C. § 2954. This law requires federal agencies to produce documents when five members of this Committee request the information.[1] To date, despite their statutory obligations to do so, these agencies have refused to comply with our requests. We, therefore, ask that you hold this administration accountable and show your support for Congress’ right to information by initiating proceedings to serve subpoenas to compel compliance with our lawful demands.
On May 19, 2021, we invoked 5 U.S.C. § 2954 in a letter to HHS and CDC requesting all documents related to coordination between CDC, the American Federation of Teachers, and the National Education Association in drafting federal school reopening guidance.[2] Instead of being transparent and responsive to this request, HHS has only produced a small subset of records that it had already made public through the Freedom of Information Act (FOIA) process. Further, even though FOIA redactions do not apply to congressional oversight, these records contained the exact same FOIA markings as the public documents.[3]
On June 11, 2021, we again invoked our authority under 5 U.S.C. § 2954 when we requested HHS and NIH to produce unredacted copies of Dr. Anthony Fauci’s emails, some of which had already been made public through heavily redacted FOIA releases.[4] Once again, HHS refused to be transparent and, on July 27, 2021, sent us what they claimed was the same heavily redacted documents it already released through the FOIA process.[5] However, after an initial review of the Fauci documents, it appears that HHS may have forgotten to apply at least one FOIA redaction to a paragraph in an email.
On April 18, 2020, Peter Daszak, the president of EcoHealth Alliance, sent Dr. Fauci an email with the subject line: “Thank you for your public comments re COVID-19’s origins.” Below is an image of that email that HHS produced to a FOIA requestor:[6]
(see footnote)
In this public FOIA document, HHS redacted an entire paragraph in Daszak’s email claiming that it contains records related to an open law enforcement investigation.[7]
However, in the documents HHS produced to us, this paragraph was unredacted, exposing the information HHS previously shielded from the American people. The paragraph stated:[8]
(see footnote)
The paragraph above does not appear to contain any information that “could reasonably be expected to interfere with [law] enforcement proceedings.”[9] This example calls into question HHS’s redaction process not only for FOIA requests from the public but also for documents produced to Congress.
For example, in both the public FOIA production and HHS’s production to our letter, HHS redacted nearly the entirety of a February 1-2, 2020 email chain where Dr. Fauci, NIH officials, and non-government scientists detailed their discussion on a February 1, 2020 teleconference on COVID-19.[10] HHS claims that these FOIA redactions are necessary to protect deliberative information.[11] However, given the inappropriate FOIA redaction applied in the example above, how can anyone trust that HHS’s assertion is valid? Moreover, no FOIA redactions should ever appear in documents that are meant to be responsive to congressional oversight.
Despite repeated outreach from staff to engage in the required accommodations process, HHS has refused to confirm whether a search for responsive documents has even occurred. Further, these agencies have also refused to provide our offices any justification as to why they produced documents to the Committee containing FOIA markings and redactions.
These agencies’ apparent contempt for legitimate congressional oversight and the law is unacceptable. This administration cannot be allowed to ignore congressional oversight nor determine what information is fit for Congress’ review. We must ensure that all federal agencies are fully transparent and responsive to this Committee’s requests, particularly when the members invoke 5 U.S.C. § 2954. We call on you to stand up for this Committee’s and Congress’ constitutional and statutory authority and respectfully request that you initiate proceedings to serve subpoenas to HHS, CDC, and NIH to compel compliance with our lawful demands stated in our May and June letters.
###
[1] 5 USC § 2954 states (“An Executive agency, on request of the Committee on Government Operations of the House of Representatives, or of any seven members thereof, or on request of the Committee on Governmental Affairs of the Senate, or any five members thereof, shall submit any information requested of it relating to any matter within the jurisdiction of the committee.”).
[2] Letter to Xavier Becerra, Secretary, Department of Health and Human Services, and Rochelle Walensky, Director, Centers for Disease Control and Prevention, from Ron Johnson, Ranking Member, Permanent Subcommittee on Investigations, et al. May 19, 2021 (enclosed).
[3] See Production from Department of Health and Human Services to Ron Johnson, Ranking Member, Permanent Subcommittee on Investigations, et al. June 25, 2021.
[4] Letter to Xavier Becerra, Secretary, Department of Health and Human Services, and Francis Collins, Director, National Institutes of Health, from Ron Johnson, Ranking Member, Permanent Subcommittee on Investigations, et al. June 11, 2021 (enclosed).
[5] See Production from Department of Health and Human Services to Ron Johnson, Ranking Member, Permanent Subcommittee on Investigations, et al. July 27, 2021.
[6] Email from Peter Daszak, President, EcoHealth Alliance, to Anthony Fauci, Director, National Institute for Allergy and Infectious Diseases, Apr. 18, 2020, available at https://www.documentcloud.org/documents/20793561-leopold-nih-foia-anthony-fauci-emails. (containing redactions pursuant to FOIA exemption (b)(7)(a)).
[7] FOIA Exemption (b)(7)(A) shields from publication “records or information complied for law enforcement purposes, but only to the extent that the production of such law enforcement records or information could reasonably be expected to interfere with enforcement proceedings.” 5 U.S.C. § 552(b)(7)(a).
[8] Production from Department of Health and Human Services to Ron Johnson, Ranking Member, Permanent Subcommittee on Investigations, July 27, 2021, JohNIH-00002151.
[9] 5 U.S.C. § 552(b)(7)(a).
[10] Id. at JohNIH-00001264-00001274.
[11]5 U.S.C. § 552(b)(5).
