A federal agency can’t use a public endangerment exemption to withhold information regarding inspection reports without providing adequate justification, the 9th U.S. Circuit Court of Appeals ruled Wednesday.

The ruling, the first of its kind regarding this exemption, says that the Centers for Disease Control and Prevention must review requests for information regarding inspection reports on a case-by-case basis rather than automatically rejecting them on the grounds that disclosure of certain information related to investigations could endanger the public.

The case stems from a 2016 lawsuit filed by The Law Center for the Public Interest over an inspection report that found numerous safety infractions at the University of Hawaii Manoa’s biolab. When the CDC first provided copies of the report, they were heavily redacted.

“It’s clear now that you can’t just withhold the identity of registered entities that have been inspected,” said Brian Black, the law center’s executive director.

John A. Burns School of Medicine. Kakaako. 8 sept 2015. photogrpah Cory Lum/Civil Beat
The Centers for Disease Control and Prevention argued that it didn’t need to provide certain information regarding safety infractions at a University of Hawaii biolab. Cory Lum/Civil Beat

The CDC has also used the public endangerment exemption from a 2002 law to redact large amounts of information from reports on lab incidents often involving agents such as influenza, Ebola and anthrax, USA Today reported.

Attorneys at the U.S. Justice Department, which represented the CDC in the case, couldn’t be reached for comment Thursday afternoon.

The federal appeals court remanded the section of the suit regarding public endangerment to the Hawaii District Court for further proceedings while also affirming the lower court’s ruling that disclosing personnel information may violate their privacy.

In the Hawaii case, the CDC argued that disclosing the location of the UH lab could pose a significant threat to the public, even though the location in Kakaako is already publicly available on the internet.

“The CDC’s position in its brief — that it may always redact the identity or location of a registered entity, even if the identity or location are publicly known — borders on the categorical exemption Congress considered and rejected,” Judge Marsha Berzon wrote in the court’s opinion.

The court said that Congress intended for agencies to consider records requests on a case-by-case basis, and that the CDC failed to show how disclosing the location of the lab in UH’s case could endanger the public.

The part of the case remanded to the lower court will involve information regarding the UH lab and its work with biological agents.

The CDC first used that exemption to withhold all information regarding the inspections. Since 2016, the CDC has gradually released more information as the case has dragged on.

It still has not disclosed information regarding CDC employees, and the 9th Circuit said it doesn’t have to.

The court weighed the employees’ privacy interests against the public’s interest in the information.

The law center argued that the CDC employees wouldn’t be embarrassed or harassed if information on them relating to the investigation was disclosed. The court said the issue wasn’t embarrassment or harassment.

“With specific knowledge that particular CDC employees were involved in the UH biolab inspection, a nefarious person interested in the specific toxins handled at the UH biolab could choose to focus on those CDC employees — who would have knowledge of the layout and security measures at that lab — for harassment or threats,” the court said.

The court went on to say that the public may not necessarily have an interest in the CDC employees since the inspection, and deficiencies that it found, targeted UH.

UH completed an improvement program after the inspection to maintain its authorization to work with certain pathogens.

The Civil Beat Law Center for the Public Interest is an independent organization created with funding from Pierre Omidyar, who is also CEO and publisher of Civil Beat. Civil Beat Editor Patti Epler sits on its board of directors.

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