HHS Appears To Forget To Redact Email Calling For Expanded COVID-19 Mandates For Students

The Department of Health and Human Services (HHS) appeared to forget to redact an email showing a Centers for Disease Control and Prevention (CDC) official calling for COVID-19 vaccine and/or testing requirements for students, according to emails obtained by the Daily Caller News Foundation.

The National Education Association (NEA) sent an embargoed statement to officials within the White House, HHS and the Department of Education (DOE) on Aug. 12, 2021, supporting COVID-19 testing and vaccine requirements for educators in the U.S., according to emails from a Freedom of Information Act (FOIA) request obtained by the Freedom Foundation and shared with the DCNF. The statement was then forwarded to Debra Lubar, the CDC director for the Office of Policy, Performance and Evaluation, who said that she “wish[ed] they’d say it for students.”

NEA’s proposed mandate would require educators to either receive the COVID-19 vaccine or submit to regular testing. The NEA previously coordinated with the CDC to develop guidance regarding the reopening of schools.

Maxford Nelsen, the director of labor policy for the Freedom Foundation, told the DCNF that a section of the email appeared to have been highlighted and labeled with the redaction code “b5,” which he said meant HHS likely attempted to redact Lubar’s comment when responding to the FOIA requests.

“This looks to me exactly like an unapplied redaction,” Nelsen said. “The text was selected and highlighted as the first step in the redaction process, but because it’s still visible, the signal that I get from that is that the redaction was not applied.”

In response to Nelsen’s records request, HHS explained that it would be redacting parts of the emails due to Exemptions (b)(5) and (b)(6) of FOIA law. Lubar’s comment was marked by exemption (b)(5), which protects “inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency.”

“This exemption protects documents that would be covered by any privilege an agency could assert in a civil proceeding,” HHS explained. “These privileges include, among others, the deliberative process privilege, the attorney-client privilege, and the attorney work-product privilege.”

Nelsen said that the deliberative process exemption for agencies like the CDC or HHS meant that they were “engaging as an agency in official deliberations about a policy [or] resolution of a complaint.”

He told the DCNF that Lubar’s comment was likely marked for one of two reasons: either HHS or the CDC was seriously considering a policy that would have required students to get tested or be vaccinated to go to school, or they didn’t consider a policy but were concerned about the fallout of such a comment and tried to come “up with an excuse to redact information that really should have been disclosed.”

“It’s concerning … [if] the CDC was even seriously considering imposing COVID vaccine mandates on students nationwide,” Nelsen said. “But if they weren’t seriously considering it, then they shouldn’t have redacted or attempted to redact disclosure of the contents of that email.”

A CDC spokesperson told the DCNF that Lubar “obviously was not referring to vaccines for children” but was instead referencing the testing requirement.

“At the time, the vaccine was not authorized or recommended for kids under 12 years of age,” the spokesperson said. “That recommendation did not come until November 2021.  She was commenting on the testing of school children to keep classrooms open and safe.  Her comment came on the heels of CDC funding totaling $10 billion to make testing widely available to school districts and was concerned that not enough attention was being focused on testing of students.”

However, the Food and Drug Administration approved Pfizer’s COVID-19 vaccine under an emergency use authorization in May 2021.

NEA and HHS did not respond to the DCNF’s request for comment.