Dodging FOIA Could Now Mean Arrest and Strip Search, Depending on Who’s Asking |
Special Investigations
Press Freedom Defense Fund
Dodging FOIA Could Now Mean Arrest and Strip Search, Depending on Who’s Asking
The DOJ is now treating evading a records request as a crime, a stunning act of hypocrisy from the Trump administration.
Lauren Harper is Freedom of the Press Foundation’s first Daniel Ellsberg Chair on Government Secrecy.
Armed federal agents recently arrested Dr. David Morens, a 78-year-old retired government scientist, strip-searched him, and charged him with crimes that could carry decades in prison — all for allegedly using his personal email to try and evade Freedom of Information Act requests.
According to prosecutors, Morens, a former senior adviser at the National Institute of Allergy and Infectious Diseases, used personal email accounts to dodge FOIA, deleted records, and sought to circumvent federal records requirements. In one message about communications about Covid research, he allegedly wrote: “I learned from our FOIA lady here how to make emails disappear after I’m FOIA’d but before the search starts. … Plus I deleted most of those earlier emails after sending them to my Gmail.”
Top NIH Official Advised Covid Scientists That He Uses Personal Email to Evade FOIA
If true, his actions were egregious and wrong, and accountability should be both proportional and consistent with previous cases of records destruction and FOIA evasion.
But the Justice Department has, for decades, largely taken a hands-off approach to enforcing FOIA. When it has enforced the law, it’s usually landed in civil rather than criminal court. The DOJ has almost never treated FOIA evasion behavior as a crime — at least until now.
That’s the real danger: making it so FOIA evasion is only a crime if the administration has a score to settle.
That’s the real danger: making it so FOIA evasion is only a crime if the administration has a score to settle.
Even in high-profile cases involving far more sensitive material, such as Hillary Clinton’s infamous use of a private email server or Bill Clinton’s national security adviser Sandy Berger’s repeated removal of classified documents from the National Archives, penalties were limited. Berger, for example, received probation, a fine, and community service, and Hillary Clinton wasn’t charged.
Morens, by contrast, faces real prison time if convicted: up to five years for conspiracy, up to 20 years per count for destruction of records, and additional penalties........