Tuesday, November 9, 2021

I caught the CDC's FOIA Director violating the Freedom of Information Act - here's what happened when I took it to his boss

CDC FOIA Director Roger Andoh (source)

My first rule when filing a public records request? Always state a dollar cap limit. 

If you don't, the agency can legally bill you whatever it determines is the processing fee. 

That's why in a May 11, 2017 Freedom of Information request to the US Centers for Disease Control and Prevention (CDC), I included: 

If the fee for completing my request exceeds US$5, please obtain my written approval prior to completing this request.

The CDC is part of the Department of Health and Human Services. From the HHS website:

So imagine my surprise when, in response to the next FOIA request I sent to the CDC - three years later on April 25, 2020 - I received a reply from one of the agency's FOIA officer that my request was denied. 


The agency claimed I owed an outstanding processing fee of $138 for my 2017 FOIA request. 

This was the first I'd heard of it. I'd never received any letter or invoice, but after some back and forth with the FOIA officer, I learned that the fee had been assessed in a July 31, 2017 letter to me from CDC FOIA Officer Roger Andoh. 

Here's the paragraph:

By the time I received the 2020 denial letter, Mr. Andoh had been promoted to the CDC's FOIA Director. 

Shortly after receiving the denial, I placed a call to Mr. Andoh during which I politely explained that he'd probably made a clerical error and overlooked the $5 cap instruction in my 2017 request. 

He agreed to review the situation and, after we hung up, I sent him a copy of my FOIA request with this highlighted paragraph:

Since it was an open and shut case, I assumed Mr. Andoh would say "oops," cancel the wrongly-assessed fee, and process the request that was rejected because of the wrongly-assessed fee. 

Instead, here's his May 11, 2020 reply, slightly edited for clarity:

(I've reviewed your casefile) and all relevant material and regret to inform you that I am unwilling to waive the fee charged to you. The letter you received (attached) informed you of the assessed charge. You claim you didn't receive the invoice, and I take you at your word, but the letter did inform you of the fee. Additionally, you failed to dispute the fees at that time, which you clearly could have done within 90 days of the date of the letter. In accordance, with HHS FOIA regulation, if a requester has failed to pay past fees, we are required to request payment before we begin processing a new request. Therefore, I have no choice but to deny your request to waive the past fee owed.

First, note the Alice Through the Looking Glass logic. 

Mr. Andoh claims, "I take you at your word." In other words, he accepts that I didn't receive his July 31, 2017 letter with the fee notification.

But then he holds me to the terms of that letter to which he had agreed that I hadn't receive. 

More to the point, he didn't address the root of the matter: the $5 cap in my records request.

Last month I circled back to the situation and filed two investigation requests. 

One was with the FOIA Ombudsman at the Office of Government Information Services asking for a determination if the processing of my request was in compliance with the Freedom of Information Act. (Coincidentally, Mr. Andoh currently serves on that group's advisory committee.) 

That office is reviewing my request. I'll publish the results as available.

My other request went to Mr. Andoh's boss, CDC Chief Operating Officer Robin Bailey Jr., in the form of an employee review. That is, I wanted to know if Mr. Andoh's handling of the matter was in compliance with CDC employee guidelines and the Freedom of Information Act.

Also from my request: 

Since Mr. Andoh mishandled a case as simple and straightforward as mine, I'm concerned that I may not be the only example. With that in mind, I'd urge you to review his caseload in recent years to determine if other FOIA requests are being improperly processed.

I courtesy copied Vesna Kurspahic who works as a liason to the CDC in the office of my congressional representative, Carolyn Bourdeaux. If I got the bum's rush, I could request a helping hand there.

Yesterday afternoon I received this email:

Subject: request for employee review
Sent: Mon, Nov 8, 2021 at 5:37 PM
From: Bailey, Robin (CDC/OCOO/OD) <spu8@cdc.gov>
To: Peter Heimlich <peter.heimlich@gmail.com>
Cc: "vesna.kurspahic@mail.house.gov" <vesna.kurspahic@mail.house.gov>

Mr. Heimlich,

After careful review, I am waiving the assessment of your 2017 FOIA request. I have made Mr. Andoh aware of my decision. Thank you for your patience.


Robin D. Bailey, Jr.
Chief Operating Officer
Office of the Chief Operating Officer|Office of the Director (OCOO/OD)
U.S. Centers for Disease Control and Prevention (CDC)

Here's my reply:

Subject: request for employee review
From: Peter Heimlich <peter.heimlich@gmail.com>
Sent: Mon, Nov 8, 2021 at 6:09 PM
To: "Bailey, Robin (CDC/OCOO/OD)" <spu8@cdc.gov>

Robin Bailey, MA
Chief Operating Officer
Centers for Disease Control and Prevention
1600 Clifton Rd NE
Atlanta, GA 30329

Dear Mr. Bailey,

Thank you for this.

While I appreciate you waiving the wrongly-imposed fee, I requested an employee review of whether or not Mr. Andoh's handling of the matter was conducted according to FOIA and CDC employee guidelines. 

In my opinion, among other issues it needs to be determined if Mr. Andoh's mishandling of my FOIA request was an isolated case or if he has mishandled other FOIA requests.

Do you intend to conduct such a review? If not, to which departments may I file my request?

Further, since you've waived the wrongly-imposed fee, would you please instruct the CDC's FOIA department to process my April 25, 2020 records request which was refused due to the wrongly-imposed fee?

Thank you for your continued time/attention and I look forward to your reply.


Peter M. Heimlich
Peachtree Corners, GA 30096 USA
ph: (678)322-7984
e-mail: peter.heimlich@gmail.com
website: http://medfraud.info
blog: http://the-sidebar.com
Twitter: https://twitter.com/medfraud_pmh
bio: http://tinyurl.com/ych7o7dr

I'll update this post with any developments. 

Click here for a pdf of all relevant correspondence and supporting documents.