Now Will The FOIA Get Some Real Teeth?

Big Government bureaucrats and power-hungry politicians have no greater enemy than the serious and sustained transparency and accountability that would flow from having a Freedom of Information Act (FOIA) on the books that sends violators to jail.

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Americans saw this week one of the most outrageous examples of what happens when the FOIA is toothless since Hillary Clinton got away with destroying 33,000 of her emails while secretary of state. And the FOIA has been toothless since LBJ signed the measure into law in 1966.

That latest example is now known—thanks to the House Select Subcommittee on the Coronavirus Pandemic—to be Dr. David Morens, the former senior adviser to then-National Institutes of Allergies and Infectious Diseases (NIAID) Director Anthony Fauci at the National Institutes of Health (NIH).

Morens is paid $183,500 annually, according to U.S. Office of Personnel Management (OPM) data compiled by Open the Books If you want to know how much virtually any federal worker is paid, go to the OTB site and use the new “Benjamin the Chatbot.” Super fast, super accurate.

In June 2023, the subcommittee told Morens to turn over copies of all official communications regarding issues raised by the panel’s investigation into the origins of the COVID-19 pandemic. He sent over 2,000 pages of such documents.

Sounds like a lot, right? Subcommittee investigators, however, knew Morens was holding back tons of information, so a subpoena was issued to him to cough up the rest of the documents sought in the investigation. Morens then turned over 30,000 more pages!

But even with the 33,000 pages of documents Morens eventually produced, there is far more to this story than his obvious refusal to cooperate fully with legitimate congressional oversight.

Check out just a few of the hundreds of key emails from Morens, beginning with this one sent via his iPhone on April 21, 2021, to schedule a Zoom meeting. Topics to be discussed included “Political letters” and “CoV research in China.”

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The meeting came at a time when congressional, law enforcement and medical sleuths were actively questioning Fauci’s official claim that COVID-19, which has killed more than 1 million Americans since January 2020, originated from bats in China, where the disease first began affecting humans: 

P.S. I forgot to say there is no worry about FOIAs. I can either send stuff to Tony on his private email or hand it to him at the office. He is too smart to let colleagues send him stuff that could cause trouble.

Then there is this from a Nov. 21, 2021, missive:

I forgot to clarify in my email yesterday that BOTH my gmail and phone calls are safe. Text is NOT, as it can be FOIA’d, as can my govt. email … So you and Peter and others should be able to email me on gmail only, with the caveat that no other govt. employee is copied at a govt. address, as all govt emails are potentially FOIAable.

And there is this damning message from Feb. 24, 2021:

You are right, I need to be more careful. However, as I mentioned once before, I learned from my foia lady here how to make emails disappear after I am foia’d but before the search starts, so I think we are all safe. Plus, I deleted most of those earlier emails after sending them to gmail.

The select subcommittee said emails like these demonstrate that Morens displayed “a systemic and troubling pattern of avoiding transparency by routinely directing others to communicate with him via a personal email address to avoid to avoid the Freedom of Information Act (FOIA) Additionally, Dr. Morens apparently took steps, with the assistance of NIH FOIA officers, to shield his official emails from public transparency.”

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By the way, Morens also says in a Feb. 25, 2021, message that those NIH FOIA officers helping him circumvent the law included “Marg Moore, who heads our FOIA office and also hates the FOIA.”

Think about this stuff: Congress passed and the president signed into law the FOIA, which declared that all federal documents are public property and available on request to every American citizen, subject only to a few reasonable exceptions such as national security, personal privacy and protection of commercial secrets.

But Morens, with the active assistance of NIH colleagues who are paid by the taxpayers to administer the FOIA law, which guarantees public access to publicly owned documents, including federal workers’ emails, text messages, memoranda, and other communications, not only actively flouted the law but also boasted about it to colleagues and helped them break the law as well.

I have a confession to make: I’ve been in Washington since 1976, first as a congressional aide, then as a Reagan political appointee, and, ever since 1985, a career journalist seeking to shine the light of truth and fact in the dark corners of government, regardless of who suffers justified public opprobrium or legal punishment as a consequence.

I have also devoted countless hours over many years in my journalism career to improving the FOIA, cooperating with professional journalism organizations and transparency advocacy groups on the Left and Right. I’ve also testified before the Senate and the House on behalf of FOIA improvements. The people have a right to know.

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But one of the key reasons government people like Hillary Clinton and David Morens (and make no mistake, there are Republicans who do it, too) so casually trample on the FOIA law without fear of consequences is the fact the FOIA has no penalties for its violation. Correct me if I am wrong, but I believe no federal employee has ever gone to jail for violating the FOIA.

This is no partisan issue. Rep. John Moss, a Democrat from California, was the main force behind the FOIA in Congress. One of the main co-sponsors was then-Rep. Donald Rumsfeld—yes, that one—who served four terms as a Republican representative from Illinois before his White House/DOD tenures.

Democrats and Republicans in government talk endlessly about their support for transparency and accountability in government. Who among them will “put their money where their mouths are” by introducing legislation to prosecute and, on showing proof beyond a reasonable doubt, convict and punish government employees who violate the FOIA? 

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