U.S. District Judge Michael Seabright has ruled that redactions the U.S. Centers for Disease Control and Prevention made to a University of Hawaii biolab inspection report were — for the most part — proper.

In May 2014, media outlets reported the CDC issued 30 citations for safety infractions at the UH biolab. But records requests submitted for the full inspection report were denied, with the CDC citing a federal biosafety law that blocks sensitive, site-specific information about biolabs from being made public.

Brian Black of The Civil Beat Law Center for the Public Interest filed a lawsuit against the CDC, claiming it excessively redacted the UH report. Black said Tuesday he planned to appeal, but declined to comment on Seabright’s ruling.

John A. Burns School of Medicine. Kakaako. 8 sept 2015. photogrpah Cory Lum/Civil Beat
Researchers at UH’s John A. Burns School of Medicine declined to disclose what select agents they work with, citing federal law. Cory Lum/Civil Beat

CDC attorney Rachel Moriyama could not be reached for comment.

The vast majority of the inspection report contained in court documents was redacted, but the CDC left a brief summary of the inspecting officer’s overall findings.

The CDC found UH had failed to address regulatory practices adopted in 2012. The program’s main responsible official “was aware of the new requirements, but took no action to ensure a compliant select agent program,” the CDC found.

“Onsite evaluation … indicated a serious disregard for these regulatory requirements resulting in observed compliance departures in the security, biosafety, incident response, and training requirements of the select agents regulations,” the CDC said in its inspection report.

The report concluded with a recommendation that the lab join the CDC’s Performance Improvement Plan Program in order to avoid having its registration revoked.

Since then, UH has confirmed its completion of the program and said the CDC has renewed its authorization to work with high-level pathogens through 2017.

The CDC redacted names of individuals working with “select agents” — federally regulated, dangerous substances — in its report. But information about researchers and the select agents they’ve studied is available on UH’s website.

In written arguments, the CDC said it was unfairly characterized “as being overly secretive and obstructionist” and that to disclose the information would mean it “should disregard its Congressionally-imposed duty to protect information.”

It’s up to laboratories, not the CDC, to be more transparent, wrote attorney Moriyama. The CDC’s head Freedom Of Information Act officer testified that each records request is reviewed individually, and reaffirmed that information in the UH report was properly withheld. Another CDC employee and two state attorneys reviewed the records request, the FOIA officer said.

Though the law center’s Black conceded site-specific safety measures should be private, he said the CDC failed to prove that more general references to safety precautions were not also redacted in the inspection report.

At a July 18 hearing, Seabright expressed concern that the CDC initially maintained the UH inspection report could not be released at all, then filed a redacted inspection report and show cause letter with a summary of the inspector’s findings.

Moriyama, the CDC attorney, said the case was unique for the agency and it had never been legally challenged on that exemption of the bioterrorism law, which led the CDC to change its mind.

In Tuesday’s ruling, Seabright sided in part with the CDC and said information found about researchers online doesn’t give “detailed context that makes clear the specifics of their job duties.” Forcing the CDC to disclose names and contact information would reveal where, when and how scientists conduct their research — “more context than a generic website directory,” Seabright wrote.

Still, the CDC could “certainly have been more focused,” Seabright wrote, but he added that “lack of focus” isn’t a FOIA violation.

Seabright ordered the CDC to produce a properly redacted version of the last page of the UH lab report by Sept. 12. The CDC claimed it accidentally withheld contact information for CDC workers who answer questions about heating, ventilation and air conditioning policies, according to court documents.

Copies of case documents can be found on The Civil Beat Law Center’s website here.

About the Author