A top advisor for former National Institute of Allergy and Infectious Diseases (NIAID) Director Anthony Fauci may have illegally taken actions to avoid records requests, experts told the Daily Caller News Foundation.
David Morens, a former senior adviser to Fauci, both deleted emails to evade Freedom of Information Act (FOIA) requests and told people multiple times to contact him at his personal email address to get around such requests, according to emails released by the House Oversight Committee on Wednesday. Morens, in his emails, also suggested that Fauci used his private email address to conduct government business.
“This is very illegal,” Matthew Hardin, a lawyer specializing in issues related to FOIA, told the DCNF.
“The Federal Records Act has strict requirements for preserving agency records in the agency’s custody for various reasons, including for purposes of facilitating the agency’s compliance with the Freedom of Information Act,” he continued. “This means that anybody conducting agency business through a ‘secret’ back channel or through Gmail is still creating a federal record, even if they are wrongfully concealing that record on a personal account instead of the government’s custody.”
In addition to using his private email address to communicate with others with the express purpose of getting around FOIA requests, Morens instructed others to reach Fauci at a private address for similar reasons.
In an April 2021 email to Peter Daszak, the president of EcoHealth Alliance, Morens said that there is “no worry about FOIAs” as he can “either send stuff to Tony [Fauci] on his private email, or hand it to him at work or at his house.”
“He is too smart to let his colleagues send him stuff that could cause trouble,” Morens continued.
“These revelations are startling,” Judicial Watch senior attorney Michael Bekesha told the DCNF. ” It appears as though Dr. Morens and maybe others at NIH sought to circumvent, if not violate, the law by using personal email accounts and deleting emails.”
Bekesha said Morens’ conduct could run afoul of the Federal Records Act, the Freedom of Information Act and the Privacy Act.
Daszak’s EcoHealth has received scrutiny for working with the Wuhan Institute of Virology, which some have posited was where the COVID-19 pandemic originated. The Federal Bureau of Investigation and the Department of Energy now both believe that COVID-19 likely emerged from a Chinese lab. EcoHealth was cut off from federal funding on May 15 in part due to issues with its monitoring of work done at the Wuhan Institute of Virology.
Beyond using personal emails to evade possible FOIA requests, Morens also said that he worked with his agency’s FOIA office to delete records of his communications.
“[I] learned from our foia [sic] lady here how to make emails disappear after I am foia’d [sic] but before the search starts, so [I] think we are all safe,” Morens wrote in a February 2021 email. “Plus [I] deleted most of those earlier after sending them to gmail [sic],” he continued.
Morens sent multiple emails between June 2020 and October 2021 suggesting that he’d deleted his government communications. “We are all smart enough to know to never have smoking guns, and if we did we wouldn’t put them in emails and if we found them we’d delete them,” he said in one email.
“The right of citizen access and the transparency of public records is constitutional and enshrined in Article I, Section 9, Clause 7 of the U.S. Constitution—within the powerful Appropriations clause,” Open The Books CEO Adam Andrzejewski told the DCNF. “Such an important and significant admission of the destruction of public records begs a non-partisan, criminal investigation,” he continued.
“The question now is how often are the feds working to hide or destroy information that belongs in the public record? Is it limited to the public health complex, or is it happening all over the government?”
If Morens deleted his emails to evade FOIA, Hardin says that could constitute “destroy[ing] government property.”
Michael Chamberlin, director of Protect the Public’s Trust, told the DCNF that “federal employees are obligated to preserve federal records” and that “destroying records for the express purpose of evading FOIA is a blatant and egregious violation of this obligation and should be treated as such.”
Morens also claimed to have a “‘secret’ back channel” to Fauci, a statement he walked back during congressional testimony on Wednesday by saying that he was only joking. Morens said during his testimony he did not recall sending information related to COVID-19 to Fauci’s personal email address, but that it’s possible he did so at some point.
The Department of Health and Human Services (HHS), which the NIAID operates within, declined to comment on the specifics of Morens’ emails.
“HHS doesn’t comment on personnel matters,” a spokesperson for the department said. “HHS is committed to the letter and spirit of the Freedom of Information Act and adherence to Federal records management requirements. It is HHS policy that all personnel conducting business for, and on behalf of, HHS refrain from using personal email accounts to conduct HHS business,” they continued.
