Petrelis Files

CDC WITHHOLDING STOP AIDS PROJECT REPORT


April 17, 2003

Michael Petrelis
2215-R Market Street, #413
San Francisco, CA 94114

Dear Mr. Petrelis:

This letter is in final response to your April 1, 2003, letter to Dr. Julie Gerberding, Director, CDC, pertaining to a Stop AIDS Project report. Your letter was processed as a Freedom of Information Act (FOIA) request.

We are withholding the draft Stop AIDS Project report. Release of this type of predecisional internal material would interfere with the agency's deliberative process. This decision is based upon the Freedom of Information Act at 5 U.S.C. 552(b)(5) and the Department's implementing regulation at 45 CFR 5.66(a).

To appeal this decision to deny you full access to agency records, send your appeal, within 30 days from the date you receive this letter, to the Deputy Assistant Secretary for Public Affairs (Media), U.S. Department of Health and Human Services, Room 17A-46, 5600 Fishers Lane, Rockville, Maryland 20857. Please mark both your appeal letter and envelope "FOIA Appeal."

Sincerely yours,
Lynn Armstrong
CDC/ATSDR FOIA Officer
Office of Communication
404-639-7270
Fax: 404-639-7395

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April 22, 2003

Julie Gerberding, MD
Director
Centers for Disease Control and Prevention
1600 Clifton Road
Atlanta, GA 30333

Dear Dr. Gerberding:

To put it mildly, I am enormously dismayed that the Centers for Disease Control and Prevention is withholding the draft Stop AIDS Project report.

You'll recall I previously asked you to answer one very basic question in relation to CDC funds directed to the San Francisco based Stop AIDS Project: Is the organization effectively using federal dollars to halt transmission of HIV and other sexually transmitted diseases?

Earlier this month, I sent you a Freedom of Information Act request for the report, and today I received a letter from Lynn Armstrong, CDC/ACTSDR FOIA Officer, informing me that the agency is denying me full access to the records, based on sections of FOIA and the agency's implementation regulations of meeting FOIA requests. As per the directions of Ms. Armstrong, I have sent an appeal regarding the CDC decision to the deputy assistant secretary for public affairs at Health and Human Services.

At your direction, four CDC investigators last August were dispatched here to determine if Stop AIDS is successful at meeting its stated goal of stopping the disease. An August 14, 2002, story in the San Francisco Examiner stated, "CDC officials will report their findings in 10 days." The story ran on the CDC daily HIV/AIDS news summary, so I know the agency was more than well aware that is had been reported CDC would issue a report within two weeks after leaving town. Eight months later, there still is no document from the CDC answering my question. Nor do we know what the four investigators did exactly during their two-day visit, other than chatting with officials at the Department of Public Health and Stop AIDS, and what findings, if any, they conveyed to you about their investigation.

The CDC's inability to adequately respond to my query of proof backing up allegations that Stop AIDS is averting new HIV transmission is perplexing. I would expect the agency, after providing $18 million annually to the San Francisco Department of Public Health for programs such as HIV prevention workshops, surveillance data and epidemiology, that the agency would readily be capable to explain to the public if that money is wisely spent to actually stop HIV infections.

Since CDC is unable to provide me with the Stop AIDS Project report, and the CDC's grantee agency, the San Francisco Department of Public Health, is almost one year late in releasing the annual HIV Counseling, Testing, Referral and Partner Counseling and Referral Services report for the city, I will soon formally ask members of Congress and the Department of Health and Human Services Office of the Inspector General to audit all CDC HIV prevention, surveillance and epidemiological grants to the local health department over the past five years.

The CDC must treat HIV as a preventable illness, not an industry. Two simple ways to bring this about is to convince the agency to release the Stop AIDS Project report, and to have HHS's Office of the Inspector General audit how the San Francisco Department of Public Health spends its federal HIV prevention dollars.

Regards,
Michael Petrelis
2215-R Market Street, #413
San Francisco, CA 94114

Cc:
Dr. Bill Frist, U.S. Senate
Dr. David Weldon, U.S. House of Representatives
Inspector General, Health and Human Services

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April 22, 2003

Deputy Assistant Secretary for Public Affairs (Media)
U.S. Department of Health and Human Services
Room 17A-46
5600 Fishers Lane
Rockville, MD 20857

RE: FOIA Appeal

Dear Sir or Madam:

This letter is an appeal in response to an April 17, 2003, letter from the Centers for Disease Control and Prevention denying me full access to agency public records, specifically a report on the Stop AIDS Project of San Francisco, California.

I sent a Freedom of Information Act request to the CDC on April 1, 2003, formally requesting release of the Stop AIDS Project report, which was to determine if the nonprofit organization was effectively using federal funds to stop new HIV transmissions through workshops and other programs targeting gay men.

The CDC is withholding the Stop AIDS Project report under the provisions of subsection 5 U.S.C. 552(b)(5) of FOIA and the Department's own implementing regulation at 45 CFR 5.66 (a).

As you know, the FOIA subsection exemption cited by CDC says:

"Sec. 5.66 Exemption five: Internal memoranda.

"This exemption covers internal government communications and notes that fall within a generally recognized evidentiary privilege. Internal government communications include an agency's communications with an outside consultant or other outside person, with a court, or with Congress, when those communications are for a purpose similar to the purpose of privileged intra-agency communications. Some of the most-commonly applicable privileges are described in the following paragraphs.

"Deliberative process privilege.

"This privilege protects predecisional deliberative communications. A communication is protected under this privilege if it was made before a final decision was reached on some question of policy and if it expressed recommendations or opinions on that question. The purpose of the privilege is to prevent injury to the quality of the agency decision making process encouraging open and frank internal policy discussions, by avoiding premature disclosure of policies not yet adopted, and by avoiding the public confusion that might result from disclosing reasons that were not in fact the ultimate grounds for an agency's decision. Purely factual material in a deliberative document is within this privilege only if it is inextricably intertwined with the deliberative portions so that it cannot reasonably be segregated, if it would reveal the nature of the deliberative portions, or if its disclosure would in some other way make possible an intrusion into the decisionmaking process. We will release purely factual material in a deliberative document unless that material is otherwise exempt. The privilege continues to protect predecisional documents even after a decision is made."

In my opinion, this exemption does not apply to my request and the Stop AIDS Project report because I have not requested internal memoranda or internal communications. The document I requested is a final report, which was written after the CDC dispatched four investigators to San Francisco last August to see if the Stop AIDS Project was properly utilizing federal HIV prevention grants.

Also, the Department's CFR 5.66 (a) regulations state:

"(b) This section does not apply to matters that are--

"(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency."

Since there is no litigation between the CDC and its grantee agency, the Stop AIDS Project, as far I know, this regulation does not apply to my original FOIA request.

Therefore, I hereby formally request that the Department of Health and Human Services immediately force the CDC to comply with my FOIA request and release the Stop AIDS Project report.

Regards,
Michael Petrelis
2215-R Market Street, #413
San Francisco, CA 94114

Cc:
Dr. Bill Frist, U.S. Senate
Dr. David Weldon, U.S. House of Representatives
Inspector General, Health and Human Services

Enclosures:
April 1, 2003, FOIA request to CDC
April 17, 2003, CDC letter rejecting the FOIA request