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NIH argues in court it cannot release information about COVID-19 origins because there's too much misinformation out there

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Christopher Ames via Getty Images

A whistleblower support group that is suing the National Institutes of Health has filed a motion objecting to a federal judge's order in favor of the government agency, which asked for the name of a Chinese scientist to be sealed. But the name of this scientist was already made public by the NIH in 2020, and critics say the agency's request is part of a haphazard and aggressive attempt to redact documents and hide information related to the origins of the COVID-19 pandemic.

Empower Oversight on Thursday filed a motion in federal district court objecting to an order issued by Magistrate Judge John Anderson granting the NIH's request to have South China Agricultural University scientist Kangpeng Xiao's name sealed, even though the agency previously disclosed Xiao's name in a public records requests made by U.S. Right to Know in 2020 and in a records requests made by Empower Oversight later.

The records concerned Xiao's June 2020 request to the NIH to have certain pangolin coronavirus sequences he submitted to the National Center for Biotechnology Information's sequence read archive deleted.

As TheBlaze previously reported, the NIH was found to have deleted certain sequences of coronavirus data from the agency's Sequence Read Archive at the requests of Chinese researchers early in the pandemic. Dr. Jesse Bloom, a virologist at the Fred Hutchinson Cancer Research Center, published a study in June 2021 that identified the missing sequences and recovered the files from the Google Cloud, from which he performed an analysis to learn more about the origins of the virus.

Bloom's analysis cited an example of another Chinese scientist requesting the deletion of two "sequencing runs" of a pangolin coronavirus from the National Center for Biotechnology Information's sequence read archive. This scientist, Kangpeng Xiao, requested numerous changes to data he submitted to the SRA, a public records request from U.S. Right to Know revealed in December 2020. “These revisions are odd because they occurred after publication, and without any rationale, explanation or validation,” USRTK observed at the time.

Responding to media inquiries on Bloom's study, the NIH explained that scientists who make submissions to the database "hold the rights to their data and can request withdrawal of the data."

But lawmakers and watchdog organizations have sought more information from the NIH about these data deletions, which they believe may provide answers to the still unknown origins of COVID-19.

Empower Oversight filed a lawsuit against the NIH in November 2021 seeking to force the agency to comply with various detailed Freedom of Information requests made for documents related to the Chinese researchers' requests to remove genetic sequences of the SARS-CoV-2 virus from the sequence read archive. The group has since entered into a protracted legal battle with the NIH, which has fought tooth and nail to keep records redacted.

In a July 11 court filing, Empower Oversight accused the NIH of improperly redacting documents in response to its FOIA requests, independent journalist Paul Thacker reported. The group cited an email the NIH had turned over, dated October 12, 2021, in which Jesse Bloom wrote the NIH inquiring about a Chinese scientist's request to delete SRA virus sequences. The names of both the scientist and an NIH official were redacted, although it was clear based on previous records disclosures the scientist was Kangpeng Xiao.

The NIH claimed the names had been redacted for privacy concerns in a declaration to the court, according to Thacker's newsletter, the Disinformation Chronicle.

"Exemption 6 mandates the withholding of information that if disclosed 'would constitute a clearly unwarranted invasion of personal privacy.' 5 U.S.C. § 552(b)(6). Exemption 6 was applied here due to the heightened public scrutiny with anything remotely related to COVID-19," NIH FOIA officer Gorka Garcia-Malene wrote.

Garcia-Malene also claimed that the information needed to be redacted "because of the amount of misinformation surrounding the pandemic and its origins."

"If released, this type of information could be used by the public to send threatening and harassing messages," he wrote.

Thacker was highly critical of the NIH's reasoning.

"Seriously, the NIH is now arguing in court that because there is so much misinformation about how the pandemic began, they can’t release facts that might clear up misinformation about how the pandemic began," he wrote in a scathing report.

What's more, Thacker reported, is that in a second production of records in response to Empower Oversight's FOIA request, the NIH provided the exact same email from Jesse Bloom but did not redact the names.

Empower Oversight made note of this in its court filing, arguing the NIH was abusing the fear of "threatening and harassing messages" to redact information that doesn't need to be sealed. "[The] NIH used this approach in instances where there was no legitimate threat of such harassment. NIH repeatedly redacted the official NIH email address of Dr. Francis Collins, even though he had retired months before [the] NIH’s May 13th production of responsive records," the group told the judge.

In response on July 15, the NIH asked the court to seal Xiao's name and the name of an NIH official he communicated with from filings in the case, even though those names had been disclosed years earlier. The NIH claimed that it had "inadvertently failed to redact the two names."

“[T]he individuals have a substantial privacy interest in avoiding harassment or media scrutiny that would likely follow disclosure,” an NIH attorney wrote to the judge. “Sealing is therefore necessary to protect this information from any further public dissemination.”

Empower Oversight objected to the motion to seal on July 22, arguing the redactions would be absurd since Xiao's name had already been made public.

"Even if this Court were to grant NIH’s motion to seal portions of Empower Oversight’s opposition to summary judgment, 'the proverbial cat is already out of the bag,'" Empower Oversight argued. "NIH has not asked the Court to 'claw back' the records purportedly lacking the agency’s intended redactions that it claims to have mistakenly failed to make. And even if the Court were to construe the agency's motion as requesting that relief, NIH has not carried its 'heavy burden to obtain such an order.'"

Nevertheless, the judge sided with the NIH on July 22, ruling that the "targeted and limited sealing" was "the least drastic alternative available," and that First Amendment concerns in favor of public access to records were outweighed by the NIH's privacy concerns, the Epoch Times reported.

Empower Oversight's response on July 28 argues that the judge "prematurely" granted NIH's request to seal Xiao's name without having received or considered the group's counterarguments.

"Empower Oversight opposes this request by NIH simply because NIH has not given a good enough reason to seal two names from the record, and this information has already been available to the public for years," the group said in a statement.

The lengths the NIH has gone to to obscure information from watchdog and oversight groups has frustrated Republican lawmakers. Sen. Rand Paul (R-Ky.) cited Thacker's reporting in a letter to the NIH demanding that the agency cease "improperly withholding information from the public related to COVID-19 for political reasons."

"NIH has repeatedly disregarded its responsibilities under FOIA and the American people's right to agency records. For almost two years, public interest groups and media organizations have been forced to engage in protracted litigation to obtain documents related to NIH's involvement in COVID-19. The records NIH has produced have been heavily redacted," Paul wrote.

He continued, "Of particular concern is NIH's recent admission in Court that the agency is withholding portions of emails between employees because they 'could be used out of context to serve and amplify the already prevalent misinformation regarding the origins of the coronavirus pandemic.' This suggests NIH is censoring the information it releases to the public about the origins of the pandemic.'"

Paul demanded that the NIH respond to several questions about how the agency processes FOIA requests no later than August 3.

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