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On January 7, 2020, my school informed me that it received a new Public Records Act request for my emails, this time from the Informed Consent Action Network (ICAN), a well-funded anti-vaccine organization headed by Mr. Del Bigtree. The request was submitted via the law firm of Siri and Glimstad in New York, though it was not signed by Aaron Siri, a lawyer who represented groups fighting vaccines in the past.

They were also involved in an aggressive 9-hour deposition against a vaccine expert who agreed to support, pro-bono, a father seeking to vaccinate his young daughter (the father recently won his appeal). The request was signed by Attorney Allison Lucas; but since one of the requests was for emails with the word “Siri”, it is fair to see Attorney Siri as relevant, whether or not he was directly involved.

Background

This is not the first Public Records Act request I received from anti-vaccine groups or people, and it’s not an unusual tactic by anti-vaccine activists – for example, Dr. David Gorski has recently received a broad request from Mr. Gary Null.

The request from the Informed Consent Action Network is mostly going to be handled by my law school. I am sharing this to point out that this is a tactic used by anti-vaccine groups against people working in public institutions, and to make some points about it.

Freedom of Information (FOIA) and Public Records Acts are aimed at increasing government transparency. The Freedom of Information Act is the federal version, and each state has its own Public Records Act, not always named that.

They have an important role in promoting government transparency. They can also be misused – for example, a majority of current federal FOIA requests are from private businesses, seeking information on their competitors.

Is the Informed Consent Action Network request legitimate?

Are the requests from anti-vaccine organizations, like ICAN, abuse or legitimate use?

Well, it depends. It’s important to note that the transparency requirement is not to serve only groups that are socially favored – after all, targets of government misbehavior that can be exposed through transparency laws may well be groups that are not popular.

So the fact that this is done in the service of the anti-vaccine cause, a cause that causes harm, is not relevant. Motives, generally, are not relevant on the grounds that increasing transparency can carry benefits even if the actors’ motives are negative.

In this case, I do not know if the request is primarily aimed at discovering the grand conspiracy the anti-vaccine groups think exists, or is simply an attempt to harass, and it is not directly relevant in terms of the law – the requesters are entitled to what the law allows them.

I do want to point out that these specific requesters have a history of misusing previous results of FOIA requests, whether intentionally or from a lack of understanding of the materials they received.

ICAN has wrongly presented the result of an FOIA request asking HHS for reports from Congress, and Del Bigtree – founder of the Informed Consent Action Network – and Robert F. Kennedy Jr. have misrepresented that lawsuit even more.

They have also misrepresented the results of an FOIA request about the testing of vaccines in pregnancy, again, intentionally or through a lack of knowledge. And they have misrepresented the results of a lawsuit about MMR testing.

They won’t find a grand conspiracy in the materials they requested, because, well, there isn’t one; but they are, based on past behavior, likely to misrepresent what they find. That is pretty usual for anti-vaccine activists.

Summary

What can people facing these kinds of requests do, and any person speaking up against anti-vaccine activists (and in some other areas) who works for a public institution may face this?

Here are some thoughts and suggestions:

Separate what’s work and what is not, and conduct non-work on a private email. Note that work-related emails may well be gettable in public records act requests even if they are exchanged using a private email. So draw the line, and keep work to work and non-work to private. Check your state’s public records act. Some states only allow requests from state citizens; all have exemptions. The requesters are not generally entitled, for example, to that discussion about your child’s cold. Make sure your institution respects not only the requirements of transparency but also the exemptions. That said, it’s likely not worthwhile sticking to the letter of exemptions when it’s trivial – even if that “dinner in (insert restaurant) was fun” comment is private and may be exempt, it’s not worth the effort. At the end of the day, the requesters are very likely to misrepresent some things sent to them, or at least, interpret them in the worst possible way. Whether through bias or through malice doesn’t matter. Remember: You are not actually engaged in an evil conspiracy. Their beliefs are not reality. Chances are that you have done nothing wrong.

You do not, and cannot, convince anti-vaccine activists of point A above. If they could accept that there is no grand conspiracy, they would not be anti-vaccine. They are not the target of your response. The ones you do need to address are others – and whether it’s worth responding is going to depend on whether you think people who matter to you may be vulnerable to anti-vaccine claims. It may be better to ignore, or it may be better to speak up.

You’re not alone. Feel free to ask for support. I intend to share publicly anything my school sends on this one because I want full disclosure and I don’t want to leave it to the anti-vaccine organization to decide what to share.

FOIA request – Siri & Glimstad LLP 01-07-20

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