Federal Judge Orders CDC to Stop 'Likely Unlawful' Erasure of Former Employees' Emails

The Centers for Disease Control and Infection (CDC) has likely been breaking the law for years, according to a new ruling by a federal judge imposing an immediate injunction on the agency's practices, which will have vast repercussions for all agencies within the Department of Health and Human Services (HHS).

The ruling came Friday, for a case brought by the conservative legal organization, America First Legal Foundation, after it found through a FOIA request that the emails of several employees of the CDC "had likely been destroyed" after leaving:

The dispute arose last year, when the Trump-aligned America First Legal Foundation filed a Freedom of Information Act request for records about a CDC publication entitled “LGBTQ Inclusivity in Schools: A Self-Assessment Tool.” After months of wrangling, the CDC identified three employees who worked on the document but indicated that two of them had departed the agency and their emails had likely been destroyed.

That prompted AFL to ask U.S. District Judge Rudolph Contreras to halt the CDC from doing this, while the case plays out:

America First Legal challenged the CDC’s recordkeeping practices as unlawful and urged Contreras to impose a “preliminary injunction,” a legal order requiring that the CDC immediately stop deleting employee emails until the court determines the legality of the process. Contreras’ decision to grant the injunction indicated he believes the....group is likely to prevail.

Contraras agreed, writing Friday in a 36-page opinion "that: CDC’s policy and practice of disposing of former employees’ emails ninety days after the end of their employment is likely unlawful":

Contreras, an Obama appointee, found that the agency had been employing a records-retention policy that had not been approved by the National Archives. That policy led the agency to delete lower-level employees’ emails 90 days after their departure from the agency, rather than the three-to-seven-year retention required by standard National Archives procedures.
The judge said the CDC, along with all other Department of Health and Human Services agencies, had adopted a National Archives protocol known as Capstone that calls for senior officials’ emails to be preserved permanently and sets retention periods of between three and seven years for messages in the accounts of lower-level employees. CDC maintained it only signed on to part of the Capstone approach, but Contreras said the agency appeared to have embraced the whole plan and then abandoned part of it without permission.
“The available evidence suggests that CDC did indeed commit to manage and dispose of its employees’ emails pursuant to the [Capstone] schedule,” Contreras wrote. “Because CDC disposed of former employees’ email records pursuant to a schedule that was not approved by the Archivist, it is likely that … records removed or deleted under the CDC’s unapproved policy were removed or deleted unlawfully.” [emphasis added]

At the time of this writing, Politico did not receive comment from either the CDC or spokespeople for the DOJ or the National Archives.

In a statement after Contraras' ruling, America First Legal’s executive director Gene Hamilton said:

“The Biden-Harris Administration was actively destroying the records of federal employees at the CDC in blatant violation of the law — and we are pleased that the U.S. District Court for the District of Columbia has ordered a stop to their illegal conduct.”

This is the CDC we're talking about, mind you, and any right-minded person has to wonder exactly what they've been deleting over these many years. Not that we can expect a rushed press release from the Biden administration with the facts any time soon, but it's something to ponder.