This article, about the ICAN FOIA gambit, was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.
Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable diseases. She is also a member of the Vaccines Working Group on Ethics and Policy.
Repeatedly, Del Bigtree’s anti-vaccine organization Informed Consent Action Network (ICAN) and others engage in a “FOIA (Freedom of Information Act) gambit” to mislead their followers. Essentially, the FOIA gambit involves asking an agency for something that is not likely to be an agency record, and when the agency said it was not found, claiming that the fact, or point, or something is unproven.
This is misleading because FOIA is only designed to get agency records, not as a tool to ask agencies questions or examine scientific issues. ICAN’s lawyers, at least, should know this, and should so advise their clients. Its repeated use suggests that this is not just ignorance, but dishonesty, and it can work – which is why I am writing this debunking post.
What does the Freedom of Information Act do?
The Freedom of Information Act was created in 1967 (and amended several times since) to allow citizens access to agency records. It is codified — for the legal-minded among you — in 5 U.S.C. §552. Here is the latest version with all the amendments.
In the relevant part, it says that agencies shall make some documents publicly available in electronic form, and also “each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person.”
Agencies are required to make reasonable efforts to search for the records. There are many exceptions. In theory, agencies should interpret FOIA broadly and consider whether to disclose even exempt information.
In practice, as those who used FOIA know, FOIA requests can take a long time, and agencies may be very liberal in applying exemptions to requests.
FOIA is far from a perfect tool, but it serves an important role in providing access to records, though it can – and is – abused in multiple ways.
An important point is that FOIA allows you one thing: to request an agency record, as explained on foia.gov:
A FOIA request can be made for any agency record. You can also specify the format in which you wish to receive the records (for example, printed or electronic form). The FOIA does not require agencies to create new records or to conduct research, analyze data, or answer questions when responding to requests.
In some agency procedures, agencies have to create a record summarizing the evidentiary basis for their action. Those procedures are often trial-like in nature. In procedures that are not formal adjudications, a procedure does not have to be done “on the record”, which means that agencies often do not have actual records setting out the basis for their decisions. Formal adjudications are generally used for the issuance of orders with legal effect.
Agencies do not generally have formal records before they issue guidance. Some regulatory agencies provide a public opportunity to comment on at least some draft guidance documents; CDC, to my knowledge, does not, and is not required to. Even agencies that provide an opportunity to comment can draw on general scientific knowledge in their guidance, and they are not going to have an administrative record for a statement drawing on the scientific literature or expert input, because that’s not the result of administrative procedures.
Agencies should have regulatory documents setting out the evidentiary basis for decisions with the force of law, even if they were not made through a formal adjudication. They will need that to survive judicial review. But even there, not all evidence will be an administrative record. For example, it’s perfectly reasonable to cite a scientific publication or the expert opinion of a body like the National Academies for Science, Engineering, and Medicine.
Agencies records are administrative records. By and large, scientific data will be found elsewhere (though there are exceptions). There are other questions on what constitutes a record.
But the take-home point is that FOIA allows you access to agency records. It’s not a tool for querying agencies. If it’s not an administrative record, it’s not likely to be found through a FOIA request.
It’s also important to remember that the people in charge of FOIA compliance do not have to be subject-matter experts. They do not have to know the scientific basis of agencies’ decisions, because their job is to look in the agency records for whether there is a record described in the request, and whether that record should be given under FOIA (or is exempt), and if it is, provide it. If it’s not, they should say so.
The ICAN FOIA Gambit
The most common way ICAN has been using the FOIA has been to ask the CDC to provide scientific data about a point in its guidance that is unlikely to be an administrative record. Then, when CDC comes back and says no records have been found, ICAN claims that this shows that there is no support for the points included in the guidance.
For example, in a recent example of this, ICAN asked CDC to provide:
All documents sufficient to support that the immunity conferred by COVID-19 vaccines does not contribute to virus evolution and the emergence of variants.
This is not something that is likely to be part of an administrative record. This is a scientific question, and the CDC is on very, very solid ground in drawing on the general scientific literature in addressing it.
Unsurprisingly, the CDC’s FOIA personnel responded with the usual boilerplate language in a situation like this: “A search of our records failed to reveal any documents pertaining to your request.”
Also unsurprisingly, ICAN then came out with an article titled “CDC Has No Records to Support Claim that COVID Vaccines Do Not Cause Variants.”
This is not strictly untrue, but it’s still extremely misleading. It’s clearly designed to make followers think that there is no evidence behind CDC’s support for vaccination as a way to reduce variants. But that is not what the response shows; it just addresses whether there are administrative records.
There is no reason for there to be administrative records on this; it draws on science. Maybe ICAN’s leaders did not know that this does not mean that there is no evidence for the claim when they did exactly this same thing in other cases, but their lawyers should know what FOIA requests show, and have the responsibility to tell their clients.
ICAN used this gambit, again and again, to try and claim that the unvaccinated do not cause risk, and in other cases, like their claim that CDC does not have evidence that vaccines do not cause autism.
These FOIA request responses do not show what ICAN claims, and at this point, it’s implausible that ICAN’s leaders – who did this again and again – do not know this.
It’s a trick. Do not fall for it.