Declaration of Roger Andoh — APT v. HHS

Record facts

UNITED STATES DISTRICT COURT · No. 1:21-cv-02834-ELR · Doc. 37-2 · 2021-12-10 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF GEORGIA 
ATLANTA DIVISION 
AMERICANS FOR PUBLIC TRUST, 
 
Plaintiff, 
 
v. 
CENTERS FOR DISEASE CONTROL 
AND PREVENTION and 
U.S. DEPARTMENT OF HEALTH 
AND HUMAN SERVICES, 
 
 
Defendants. 
 
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Civil Action No. 1:21-CV-2834-ELR 
DECLARATION OF ROGER ANDOH 
Pursuant to 28 U.S.C. § 1746 and under penalty of perjury, I, Roger Andoh, 
declare that the following enumerated statements are true and correct to the best of 
my knowledge.  
1. 
I am over 18 years old and competent to testify.  
2. 
I am submitting this declaration in my capacity as Director of the 
Freedom of Information Act Office for the Centers for Disease Control and 
Prevention/Agency for Toxic Substances and Disease Registry (“CDC/ATSDR”), 
an entity of the U.S. Department of Health and Human Services (HHS). In this 
capacity, I am the Freedom of Information Officer for CDC/ATSDR.  
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3. 
I have been in my current position since June 2016, and I have personal 
knowledge of the matters and facts discussed in this declaration and any attachments 
to this declaration. I further make this declaration based upon information available 
to me in my official capacity. 
4. 
As the FOIA Officer, I supervise and direct the day to day activities of 
the CDC/ATSDR FOIA Office (hereinafter referred to as “CDC-FOIA”). CDC-
FOIA is the central office responsible for responding to requests for information 
under the FOIA for records from all operating divisions of the CDC and the ATSDR. 
FOIA requests are disseminated electronically to areas within the agency that are 
considered most likely to possess responsive records. In my position, I determine 
whether to release or withhold records, or portions of records, in accordance with 
the FOIA and the HHS implementing regulations. I also coordinate efforts, as 
necessary, when one or more of the CDC Centers/Institutes/Offices or one of the 
ATSDR Divisions is involved in responding to a FOIA request. 
5. 
Due to the nature of my official duties, I am familiar with the 
procedures followed by CDC-FOIA in responding to requests for information 
pursuant to the provisions of FOIA, and specifically, I am familiar with CDC-
FOIA’s handling of the FOIA request at issue in the above-captioned matter, which 
is described below. I have reviewed the documents at issue in the above-captioned 
litigation, as well as the Vaughn index describing withheld information that is at 
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issue in this action. The Defendants’ Vaughn index is attached to this Declaration in 
four parts as Exhibit 1. 
6. 
I make this declaration based upon both my personal knowledge and 
information that I have received in the course of my official duties as the Freedom 
of Information Officer for the CDC, as well on the basis of information I have 
received in conducting these consultations and collecting all of this information. 
FOIA Request Number #21-00613-FOIA  
7. 
On February 4, 2021, CDC-FOIA received a FOIA request from 
Plaintiff erroneously dated February 4, 2020 via electronic mail (“Plaintiff’s FOIA 
Request”). A copy of Plaintiff’s FOIA Request is attached to this Declaration as 
Exhibit 2. 
8. 
Plaintiff’s FOIA Request sought the following documents: 
Emails, communications, correspondence, and/or talking points 
describing CDC guidance for the reopening of schools, during the 
above stated time period, in the following CDC staff email 
accounts: Rochelle Walensky (Director), Anne Schuchat 
(Principal Deputy Director), Christopher Jones (Associate 
Director for Communication), Robin Ikeda (Associate Director 
for Policy and Strategy), Mitchell Wolfe (Chief Medical Officer), 
Sherri Berger (Chief of Staff), [and] Jeff Reczek (Director, 
Washington Office.  
I seek any and all records, as that term is defined under FOIA (5 
U.S.C. § 552(f)(2)), and applicable case law (see, e.g., Forsham 
v. Harris, 455 U.S. 169, 193 (1980)), existing in any format 
whatsoever, 
including, 
but 
not 
limited 
to, 
written 
correspondence, email correspondence, records of telephone 
correspondence, records pertaining to in-person meetings, 
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calendar or scheduling entries, videotapes, photographs, 
computer printouts, telephone messages, or voice mail messages 
between January 15, 2021 to the present. 
9. 
CDC-FOIA’s formal acknowledgment letter of Plaintiff’s FOIA 
Request was sent to Plaintiff on February 5, 2021, and is attached to this Declaration 
as Exhibit 3. In that letter, CDC-FOIA assigned Plaintiff’s FOIA Request the 
reference #21-00613-FOIA, confirmed the CDC’s receipt of the request, and 
indicated that Plaintiff’s FOIA Request had been placed in the complex processing 
queue. Id. CDC-FOIA further explained in that letter that it reasonably expected “to 
consult with two or more C/I/O/s [(meaning, Centers, Institutes, and Offices)], or 
another HHS operating division or another federal agency about” Plaintiff’s FOIA 
Request. 
First Search and Production of Records 
10. 
Following the correspondence mentioned above in Paragraph 9, on 
February 8, 2021, the FOIA Analyst for CDC-FOIA sent a request for documents 
(RFD) to CDC-FOIA’s Information Technology (IT) team to run a search on the 
Outlook mailboxes of the individuals listed in Plaintiff’s FOIA Request.  
11. 
The RFD was sent to IT for three reasons. First, as stated in Paragraph 
8 above, Plaintiff’s FOIA Request was seeking “emails, correspondence, and/or 
talking points” for the reopening of schools in the email accounts of the following 
staff: Rochelle Walensky (Director), Anne Schuchat (Principal Deputy Director), 
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Christopher Jones (Associate Director for Communication), Robin Ikeda (Associate 
Director for Policy and Strategy), Mitchell Wolfe (Chief Medical Officer), Sherri 
Berger (Chief of Staff), Jeff Reczek (Director, Washington Office). Given that IT is 
a centralized CDC entity, it is in the unique strategic position to access the email 
mailboxes of all CDC staff, including therefore, the email mailboxes of the seven 
CDC individuals mentioned in Plaintiff’s FOIA Request. Consequently, it was more 
efficient to send the RFD to IT rather than asking each of these individuals to search 
their own email mailboxes.  
12. 
The second reason why the RFD was sent to IT was that the types of 
records that Plaintiff sought, which were email, correspondence, talking points, or 
both, were the types of records that are generally maintained in Outlook mailboxes, 
which again are all accessible by IT. At the time of the Request, most CDC staff 
were on full telework, so responsive records would have been entirely electronic and 
communications made via email.  
13. 
Finally, the third reason why the RFD was sent to IT was that through 
Microsoft Enterprise (a comprehensive platform that allows access to all Microsoft 
products), IT has the technological capability to search the mailboxes of multiple 
custodians at the same time, and with multiple keywords. In fact, CDC-FOIA has an 
agreement with the different offices that administer the various HHS programs 
stating that, when a FOIA request is straight forward and appropriate for a Microsoft 
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Enterprise or IT search, IT will be the entity to run the search. This agreement avoids 
duplication of efforts and saves CDC’s resources. As a result of the above, CDC-
FOIA opined that the streamline approach to handle Plaintiff’s FOIA Request was 
to send the RFD to IT.  
14. 
Upon receipt of the RFD, on February 22, 2021, IT conducted its initial 
search. The keywords and Boolean parameters used in this search were: a) 
“reopening of school*” OR b) “reopening” AND “school*” OR c) “guidance” AND 
“reopening” AND “school*” OR “childcare.” These keywords were selected 
because they not only mirrored the wording in Plaintiff’s FOIA Request which as 
stated in Paragraph 8 above, sought records “describing CDC guidance for the 
reopening of schools,” but they also appropriately captured Plaintiff’s intent. The 
asterisk shown behind certain words denoted a search for any conjugate of that 
search term – for example, the search term “school*” included searches for records 
which contained the words “school,” “schools,” “schooling,” “schooled” and any 
other conjugate of the word “school.”  
15. 
The type of documents that IT searched included emails, 
communications, correspondence, and/or talking points. IT targeted this category 
of records because as stated in Paragraph 8 above, Plaintiff’s FOIA Request had 
requested “emails, communications, correspondence, and/or talking points.” 
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16. 
Regarding the time frame, even though as stated above in Paragraph 8, 
Plaintiff’s Request had sought records from January 15, 2021 to the present, which 
the CDC could have reasonably interpreted to mean to the date of Plaintiff’s letter 
(February 4, 2021), the CDC used a wider time range that reflected the date of the 
first search, February 22, 2021. (I misstated, in an earlier declaration, that the search 
occurred on February 24, 2021.) This wider time range resulted in the identification 
of a larger group of potentially responsive records.  
17. 
Using the Microsoft Office 365 eDiscovery tool and criteria listed 
above in Paragraphs 14 through 16, on February 22, 2021, IT conducted the search 
in the Outlook sent mailboxes of six of the seven individuals listed in Plaintiff’s 
FOIA Request but inadvertently left Ms. Schuchat out. (The recognition and 
correction of these two search errors are described below.) 
18. 
Once CDC-FOIA received from IT the records that resulted from the 
search, a CDC-FOIA analyst uploaded them in the FOIAXpress system so that the 
analyst could process the results for any applicable FOIA exemptions. FOIAXpress 
is an all-inclusive system that provides a FOIA Office with all tracking, storage, 
processing, communication, management, and reporting tools required to administer 
its FOIA program.  
19. 
As a result of this processing, CDC-FOIA identified 497 pages of 
responsive documents. (The processing of records and reasoning for exemptions is 
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more fully described below.) Consequently, on April 21, 2021, the CDC sent a letter 
to Plaintiff indicating that it had identified 497 pages of responsive records, was 
releasing 63 pages in full, 189 pages in part, and withholding 148 pages in full 
pursuant to FOIA Exemptions 5 and 6, 5 U.S.C. § 552(b)(5) and (b)(6). A copy of 
this correspondence is attached to this Declaration as Exhibit 4. The letter also 
informed Plaintiff that 97 pages of the 497 pages were being referred to another FOIA 
Office of HHS, at the Office of the Secretary for their direct response to Plaintiff. Id.  
Application of Exemption 5 of the FOIA 
20. 
For purposes of background, President Biden had issued an Executive 
Order on Jan. 21, 2021, supporting the reopening and continuing operation of 
schools. The Biden-Harris administration had identified the safe reopening of 
schools as a top national priority. To support this priority, HHS and CDC had issued 
guidance to help the U.S. mitigate and minimize infections, community spread, 
hospitalizations, and deaths from COVID-19. The CDC had worked in consultation 
with other agencies and constituencies to formulate guidance for getting more 
children safely back into schools—“Guidance for COVID-19 Prevention in K-12 
Schools,” released February 12, 2021 (“Guidance”).  
21. 
Prior to the publication of the Guidance, the CDC had also gathered 
input to help inform agency policy from various sources by participating in 
roundtables, listening events, conference calls, media events, interviews, and other 
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meetings. The input gathering process also included the use of consultants to aid the 
agency in drafting, editing, and deliberating the language and content of the 
Guidance. (See, e.g., Vaughn II, ¶¶7, 8, 9.) To the extent other targeted persons or 
organizations were consulted for their unique perspectives to help the CDC complete 
its draft of the Guidance, they were limited, non-public disclosures of the draft solely 
to assist the agency in finalizing its policymaking. (See, e.g., Vaughn II, ¶¶39, 40, 
53, 63 (internal agency deliberations regarding solicited feedback).) Although one 
version of the draft Guidance was confidentially released for the purpose of 
informing the agency’s continued deliberations, subsequent iterations prior to the 
final version were not, and the CDC is unaware of any consultant or agency partner 
disclosing either the draft Guidance or the content and nature of the ongoing 
deliberations.   
22. 
Preparation for the various pre-release listening events and post-release 
messaging events included extensive internal deliberations about (i) the information 
to reveal at any point prior to the issuance of the final policies, (ii) how to convey 
information to various constituencies in a way that is clear and promotes public 
health and safety, and, among other things, (iii) the right language to include in any 
final policies. The agency had engaged in discussions with other agencies, Congress, 
the White House, governors, parents, and teachers (who possessed not only a 
specific body of knowledge and a unique perspective but would be necessary for 
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schools to reopen), and they had drafted talking points and memoranda for CDC 
officials’ use in those discussions. The content and language of the Guidance and 
subsequent updates as well as the talking points and memoranda (including 
summaries of the Guidance and “fact sheets”) developed for discussions had been 
the subject of extensive drafts and deliberations to help shape the final language.  
23. 
Both before and since February 12, 2021, the CDC officials had been 
engaged in ongoing inter- and intra-agency discussions to consider and develop the 
agency’s initial and continuing positions on how schools could reopen and stay open 
safely. Due to the ongoing nature of the pandemic, the CDC has continued to refine 
and adapt its Guidance on school reopening, and it had added several updates to the 
initial February 12 Guidance. Those updates, once published, were part of the 
agency’s final policies. The CDC’s website in fact lists the many substantive policy 
updates it has made to the Guidance since the initial publication.  
24. 
The material that CDC-FOIA exempted under FOIA Exemption 5 
included: 
a. Drafts of the Guidance, including tracked changes and comments by 
agency officials. Almost 150 pages of the initial responsive records 
withheld completely were drafts.  
b. Emails containing portions, paragraphs, or summaries of the draft 
Guidance with comments or edits by agency officials.  
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c. Emails reflecting the agency’s internal deliberations and rollout plans 
as well as the discussions with other agencies and Congress as the 
agency developed the Guidance and determined how to communicate 
it most effectively across the government.  
d. Emails reflecting the agency’s draft agenda, proposals, and considered 
talking points for discussions with governors and other interested 
stakeholders like parents and teachers as the agency developed the 
Guidance and determined how to communicate it most effectively to 
the public at large and including emails regarding White House 
briefings.  
25. 
FOIA 
Exemption 
5 
protects 
“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.” In those cases when information has been 
withheld or redacted in the records provided to the Plaintiff, the deliberative process 
privilege stated in Exemption 5 of the FOIA applied to those materials. The 
deliberative process privilege protects “advice, recommendations, and opinions that 
are part of the deliberative, consultative and decision making process of the 
government.”  
26. 
Here, FOIA Exemption 5 was applied to protect pre-decisional, 
deliberative communications among staff regarding the entire decision-making 
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process of creating and communicating a comprehensive school guidance during 
COVID-19. Specifically, of the records produced, the CDC also exempted records 
or portions of records that included inter-agency and intra-agency deliberations, 
discussions, opinions, thoughts, comments, edits, and other statements that 
informed, facilitated, refined, or assisted in the development of agency policy, as 
well as records or portions of records containing protected information exchanged 
with close advisers to the President from the Executive Office of the President on 
related matters, such as communicating the agency’s guidance to interested 
stakeholders and the public at large. Such exempt record portions were redacted and 
marked “(b)(5).”  
27. 
These deliberative communications, as well as the draft versions of the 
Guidance contained recommendations, issues, opinions, and advice; all of which 
were taken under advisement for the crafting and communicating of the final version 
of the CDC’s Guidance. The release of non-final agency policies or records could 
cause public confusion as to what constitutes the final, implemented agency policy, 
causing harm by providing the public with erroneous information on a particularly 
sensitive matter. 
28. 
In tandem with the drafting of the Guidance, there were also several 
press briefings provided by the CDC Director. Draft versions of the press briefings 
were withheld under the deliberative process privilege because, up to the actual 
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briefings or interviews, CDC officials were deliberating, debating, and amending 
what would or would not be stated.  
29. 
Exemption 5 was also applied to interagency communications between 
the Department of Education, the Office of Management and Budget, HHS, and 
CDC on the decision making process of this Guidance, which were also held under 
the deliberative process privilege. 
Presidential Communications Privilege 
30. 
Additionally, several records contained Executive Office Privilege 
(EOP) equities were withheld as deliberative but were also exempt from production 
pursuant to the presidential communications privilege. This privilege under 
Exemption 5 protects documents solicited and received by the President and/or his 
immediate White House advisers who have broad and significant responsibility for 
investigating and formulating the advice to be given to the President. Information 
withheld included briefing materials and other background information that reflected 
internal deliberations regarding matters of policy. 
31. 
The presidential communications privilege applies to documents 
reflecting the conversations that take place in the President’s performance of his 
official duties, as well as information that is solicited and received by the President 
or an immediate White House adviser to the President or their staff who has broad 
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and significant responsibility for investigating and formulating the advice to be 
given to the President. 
32. 
I have personally reviewed the responsive records at issue in this case 
and am familiar with the contents of the records. CDC FOIA staff, including myself, 
have consulted with Dr. Henry Walke, Director of the Center for Preparedness and 
Response and the former incident manager for the CDC’s COVID-19 response and 
chief CDC spokesperson, and the White House Counsel’s Office to review the facts 
necessary to determine that the documents contained presidential communications 
and agency deliberations. 
33. 
HHS withheld in part four records (Vaughn I, ¶¶72; Vaughn II, ¶¶10-
12) and withheld in full thirty-four records (including emails and attachments as 
separate records) under FOIA Exemption 5, 5 U.S.C. § 552(b)(5), pursuant to the 
presidential communications privilege. See Vaughn I, ¶72, Vaughn II, ¶¶1, 2, 11-12, 
18-20, 34-35, 43-44, 47, 49, 54-55, 58-61, 71-72, 82-83; Vaughn III, ¶3-4, 13, 19-
20, 38-39, 74, 76-77, 81. Each of these thirty-eight records is protected by the 
presidential communications privilege because it is either (a) a communication with 
Jeff Zients, the White House Coronavirus Response Coordinator and Counselor to 
the President, or Carole Johnson, the White House coronavirus disease (COVID) 
Response Team Testing Coordinator, soliciting, receiving, or communicating 
information in the course of their duties as an immediate adviser to the President, or 
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a staff member of an immediate adviser to the President, on matters of the federal 
government’s response to the COVID-19 pandemic; (b) a communication from the 
White House Associate Director of Presidential Scheduling to attendees of a 
presidential briefing discussing the briefing; or (c) a communication responding to 
a request made by Mr. Zients or Ms. Johnson soliciting and receiving information in 
preparation for a presidential briefing. 
34. 
Mr. Zients is an immediate adviser to the President with broad 
responsibilities over the government’s response to the COVID-19 pandemic 
response. In his role as Coordinator of the COVID-19 Response and Counselor to 
the President, Mr. Zients oversees the response to COVID-19 across the federal 
government, including formulating and implementing policies for testing, vaccine 
distribution, mobilization of economic aid, and other priorities. Mr. Zients frequently 
meets with and advises the President on numerous aspects of the national response 
to COVID-19. Mr. Zients is at the rank of Assistant to the President.  
35. 
Ms. Johnson is also an immediate adviser to the President with broad 
responsibilities related to COVID-19. Ms. Johnson focuses on COVID-19 testings 
and also devotes time to other public health matters, such as responding to surges in 
COVID-19 cases. She formulates advice to the President related to the national 
response to the COVID-19 pandemic and serves on the team led by Mr. Zients. She 
is at the rank of Deputy Assistant to the President.  
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36. 
As reflected in the Vaughn index, eight of the thirty-eight responsive 
records that are protected by the presidential communications privilege are email 
chains and their attachments between Mr. Zients, Natalie Quillian, the Deputy 
COVID-19 Response Coordinator, Farhana Hussain, an Advisor to Mr. Zients, Dr. 
Rochelle Walensky, the Centers for Disease Control and Prevention (CDC) Director, 
and Ms. Sherri Berger, the CDC Chief of Staff. Vaughn I, ¶¶3, 19; Vaughn II, ¶¶1, 
18, 34, 58, 60, 71. These e-mails discuss preparations for briefing the President on 
the response to COVID-19, specifically, opening schools, and attach draft briefing 
and preparatory materials. The disclosure of these documents would reveal 
information about the formulation of advice to the President regarding the federal 
government’s response to COVID-19. 
37. 
As reflected in the Vaughn index, twelve of the thirty-eight responsive 
records withheld under the presidential communications privilege are email chains 
and their attachments between Ms. Johnson, Dr. Walensky, Dr. Anne Schuchat, who 
at the time was the Principal Deputy Director of CDC, Dr. Henry Walke, Dr. 
Christopher Jones, Associate Director for Communication, and Dawn O’Connell, 
the Assistant Secretary for Preparedness and Response. See Vaughn II, ¶¶1, 2, 18, 
19, 34, 35, 71, 72; Vaughn III, ¶¶3, 4, 19, 20. These emails discuss preparations for 
briefing the President on the response to COVID-19, specifically, opening schools, 
and attach draft briefing and preparatory materials. On its face, the document at 
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Vaughn II, ¶34 explains that the conversations and attachments are in preparation 
for Dr. Walensky’s meeting with the President. The disclosure of these documents 
would reveal information about the formulation of advice to the President regarding 
the federal government’s response to COVID-19.  
38. 
Seventeen of the responsive records that are withheld in full under the 
presidential communications privilege reflected in the Vaughn index are email 
chains between Dr. Walensky, Dr. Anne Schuchat, Dr. Henry Walke, and Ms. Sherri 
Berger, and attachments. The emails include discussions on preparations for briefing 
the President on the response to COVID-19, specifically, opening schools, and, in 
some instances, attach draft briefing and preparatory materials created or sent at Ms. 
Johnson’s or Mr. Zients’s requests. 
39. 
 My knowledge of the contents of the records and the basis for the 
invocation of Exemption 5 is further informed by consultations I have had with Dr. 
Walke regarding the email chains and attachments between Dr. Walke, Dr. 
Walensky, Dr. Shuchat, and Ms. Berger. Dr. Walke confirmed that the emails reflect 
discussions regarding preparation for Dr. Walensky’s meeting with the President and 
that the attachments were prepared for the same briefing. Further, on their face, 
documents found at Vaughn II, ¶¶44 and 47 explain that Ms. Johnson solicited 
information in preparation for the presidential briefing. Disclosure of these records 
would reveal information about the formulation of advice to the President regarding 
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the federal government’s response to the COVID-19 pandemic, including opening 
schools. 
40. 
The final document of the responsive records that are withheld in full 
under the presidential communications privilege reflected in the Vaughn index is an 
email chain between Ms. Alyssa Giammarella, the White House Associate Director 
of Presidential Scheduling and others including Ms. Berge, Dr. Walensky and Mr. 
Zients, discussing preparations for briefing the President. Vaughn III, ¶74. On its 
face, this document shows topics and invitees for Dr. Walensky’s meeting with the 
President and describes logistical preparations for that briefing. The disclosure of 
this document would reveal information about the formulation of advice to the 
President regarding the federal government’s response to COVID-19. 
41. 
In accordance with 5 U.S.C. § 552(a)(6)(B)(iii)(III) and 45 C.F.R. § 
5.25(b)(1), CDC FOIA staff consults with other agencies when records contain 
within them information of interest to another agency or Federal Government office. 
My staff consulted with the White House Counsel’s Office prior to applying the 
presidential communications privilege to the thirty-eight documents identified in the 
Vaughn index.  
Risk of Foreseeable Harm 
42. 
The CDC determined that there was foreseeable harm if the redacted 
records were released. The CDC opined that its decision making process would be 
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hindered if its draft documents and deliberative discussions were made publicly 
available. If agency officials thought their opinions, thoughts, and deliberations 
would be public and front page news, those officials would not speak openly or as 
candidly. In the midst of the COVID-19 pandemic, chilling those discussions not 
only harms the agency but impacts the public. Long-term, such a chilling effect 
would result in weakened policies that undergo less scrutiny, vetting, questioning, 
and testing because of concerns regarding subsequent disclosure.  
43. 
Furthermore, the public disclosure of drafts and pre-decisional 
questions could cause confusion on what guidance was final. At risk are the health 
and lives of thousands of Americans who might be confused by or ignore or distrust 
final guidance if it is contradicted or questioned based on pre-decisional 
deliberations made public. There was already a crisis of misinformation with respect 
to the pandemic and mitigation strategies—in addition to the more global 
misinformation crisis. As was evident from the spikes in COVID-19 infections and 
hospitalizations, the confusion and uncertainty regarding public health policies was 
dangerous and deadly. As a result, it was, and is, of critical importance that agency 
officials continue to speak freely amongst themselves as they formulate these 
policies and that those deliberations be excluded from disclosure. 
44. 
Likewise, if email exchanges like these between Executive Branch 
officials and immediate White House advisers and their staffs on matters related to 
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the advisers’ responsibilities were to be publicly disclosed, information flow would 
be stifled, resulting in a chilling effect on the sharing of frank and candid ideas and 
opinions that enable a presidential adviser to formulate the best possible advice, 
thereby impairing the President’s ability to fully and faithfully carry out his duties. 
In sum, public disclosure of the documents identified as subject to the Presidential 
Communications Privilege would greatly risk harming the quality of information 
and advice available to the President, to the detriment of presidential decision-
making.  
Exemption 6, Segregability, Discretionary Disclosure 
45. 
Exemption 6 of the FOIA permits a federal agency to withhold 
information about individuals that “would constitute a clearly unwarranted invasion 
of personal privacy.”  
46. 
Exemption 6 was applied to protect information that “would constitute 
a clearly unwarranted invasion of personal privacy,” including personal identifiable 
information of private citizens who were a part of the teachers’ roundtable discussion 
with the CDC Director. See, e.g., Vaughn I, ¶¶5, 7, 14, 18, 19, 24, 25. Exemption 6 
was also used to protect phone numbers and passcodes to internal agency conference 
lines. See, e.g., Vaughn I, ¶28, 36; Vaughn II, ¶26; Vaughn III, ¶28, 54, 60-65. 
Exemption 6 was further applied to emails and phone numbers of some CDC 
officials and EOP staff. See, e.g., Vaughn I, ¶¶4, 6, 9; Vaughn II, ¶¶24, 26, 70; 
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Vaughn III, ¶¶41, 42, 60-61. Release of high ranking EOP email addresses and phone 
numbers could reasonably be expected to constitute an unwarranted invasion of 
personal privacy by subjecting personnel to harassment and annoyance in 
conducting their official duties.  
47. 
CDC completed a line-by-line review of all material and determinations 
were made based off the content in the records. All reasonably segregable 
nonexempt information was released to Plaintiff, and only portions protected by 
privacy interests and the deliberative process privilege were withheld from Plaintiff. 
The draft records that were fully withheld represent the agency’s tentative selection 
and deliberation on what studies and other material to include or exclude in the 
Guidance. The agency’s assessment of such material is deliberative. The very act of 
selecting what information—both factual and opinion—to include in a draft 
document or in a communication discussing the proposed Guidance is itself a 
deliberative process that would be chilled to the agency’s and the public’s detriment 
if not protected. Moreover, any arguably non-exempt material was too intertwined 
with exempt material that any attempt to segregate would either reveal the agency’s 
deliberative process or production of a redacted version would be incomprehensible.  
48. 
In addition to the foregoing, information that was withheld was not 
appropriate for discretionary disclosure. In determining whether to make a 
discretionary release, the age of the document and the sensitivity of its content need 
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to be evaluated. While it is true that agencies may use their discretion to release 
information with the passage of time, the records involved here are still too recent 
to be released. The Guidance was released in February of this year (2021). 
Additionally, the agency is still actively working on and releasing updated guidance 
based on evolving evidence of COVID-19 transmission in K-12 schools and the 
advent of vaccines for children 5-16. Due to the ongoing decision making processes, 
the content of these records is too sensitive to be provided to Plaintiff under 
discretionary release. 
49. 
Finally, some of the records produced by the search included material 
that was nonresponsive to Plaintiff’s FOIA Request. The CDC produced this 
nonresponsive material unless exempt. For example, if an email included 
recommendations to edit a paragraph of the Guidance but also included 
recommendations to edit workplace guidance, or to circle back on a tangential policy 
issue, such deliberative, pre-decisional communications were redacted as exempt 
and marked “(b)(5).” 
Referrals to Other Entities 
50. 
As stated above in Paragraph 19, CDC-FOIA’s April 21, 2021 letter to 
Plaintiff informed Plaintiff that 97 pages of these 497 pages were being referred to 
another FOIA Office of HHS for their direct response to Plaintiff. See Ex. 4. CDC-
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FOIA also provided the contact information of the FOIA Office to whom they had 
referred these 97 pages. Id. 
51. 
HHS has several FOIA Offices who operate as Service Centers. Some 
of these offices relate to the Administration for Community Living (ACL), 
Administration for Children and Families (ACF), Agency for Healthcare Research 
and Quality (AHRQ), Centers for Disease Control and Prevention (CDC), or Centers 
for Medicare and Medicaid Services (CMS), among others. Each of the HHS FOIA 
Service Centers has specific functions and responsibilities. When a requester sends 
a request to one of the FOIA Service Centers, the requester can request all records 
that relate to that particular Service Center or that are in that entity’s possession and 
not already in the public domain (e.g., in the library or available from a 
clearinghouse) which are subject to FOIA. In this case, Plaintiff sent its request only 
to the Service Center for the CDC, that is, CDC-FOIA.  
52. 
While processing the responsive documents, CDC-FOIA discovered 
that some of the responsive records fell under the jurisdiction of the Freedom of 
Information/Privacy Acts Division, Office of the Assistant Secretary for Public 
Affairs (“ASPA”), Office of the Secretary (“OS”) which is an Office of the Secretary 
Staff Division (“OS-FOIA”). This meant that even though some records were in the 
custody of the CDC and included CDC’s interests or equities, they had originated 
with a different entity than the CDC, and hence, contained equities over which the 
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CDC could not opine. As a result, these records needed to be referred to OS-FOIA 
so that it could oversee the review and potential release of these records. 
53. 
Given that CDC’s equities also applied to these records, prior to 
referral, the CDC first applied its own exemptions. On April 21, 2021, on the same 
day that CDC-FOIA sent Plaintiff the letter mentioned above in Paragraph 19, CDC-
FOIA referred these records to OS-FOIA so that OS-FOIA could apply their own 
appropriate FOIA exemptions and protect their equities. A copy of this 
correspondence is attached to this Declaration as Exhibit 5. 
54. 
In its referral to OS-FOIA, CDC-FOIA attached the 97 pages and a 
copy of its April 21, 2021 letter to Plaintiff. Id. 
55. 
CDC-FOIA also sent records originating or containing White House 
equities from the EOP (defined above in Paragraphs 30-31) to that Office for 
consultation so that they could review their own equities. Because some of the 
responsive records contained White House equities, those records were sent to the 
Office of the Counsel to the President for consultation, consistent with the 
longstanding practice described above.  
56. 
On May 14, 2021, Plaintiff submitted an appeal regarding the use of 
FOIA Exemption 5 in the 400 pages of records produced. A copy of this 
correspondence is attached to this Declaration as Exhibit 6. In its appeal, Plaintiff 
stated that “many of the fully withheld records (as well as numerous substantially 
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redacted portions of those that were produced) were improperly withheld under the 
deliberative process privilege exemption and [were] subject to disclosure under 
FOIA.” Id. Plaintiff further stated that “it is highly unlikely that each piece of 
information ‘formed an essential link’ in the consultative process leading to the 
CDC’s formulation of its policy.” Id.  
57. 
OS-FOIA notified Plaintiff, on May 17, 2021, that it would not be able 
to make a determination within 20 days. A copy of this correspondence is attached 
to this Declaration as Exhibit 7.  
58. 
Prior to any determination regarding the propriety of the use of the 
“(b)(5)” exemption, Plaintiff filed this lawsuit. After HHS learned of the lawsuit, 
OS-FOIA administratively closed the appeal on July 30, 2021.  
59. 
After Plaintiff filed this lawsuit, the CDC, in coordination with HHS 
and other interested agencies and entities, reviewed the original records and 
identified one 14-page attachment that was not included in the initial production of 
records, and the CDC then sent an additional release to Plaintiff on September 1, 
2021. That release comprised the entire first set of records (400 pages) that had 
already been sent to Plaintiff on April 21, 2021, as well as the now additional 14 
pages, hence a total of 414 pages. That production was not the result of a new search. 
A copy of this correspondence is attached to this Declaration as Exhibit 8. 
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Second Search and Production of Records 
60. 
On or about August 30, 2021, I learned that an email containing a draft 
of the Guidance might have been shared with the American Federation of Teachers 
(“AFT”). No such email was captured in the initial search or responsive to Plaintiff’s 
Request, but it was determined that the Guidance was, at times, referred to as the 
“operational strategy.” Consequently, CDC-FOIA instructed IT to conduct a second 
search, which was implemented on or about September 1, 2021. This second search 
focused on the same date range as the first search and in the same “sent” folders but 
for all seven individuals listed in Plaintiff’s FOIA Request. The keywords and 
Boolean parameters used for this search, however, were “CDC operational strateg*” 
OR “k-12 operational strateg*”.  
61. 
As a result of this second search, the CDC identified 1,291 pages of 
responsive records. On October 8, 2021, CDC-FOIA released 162 pages in part, 
withheld 778 pages in full pursuant to FOIA Exemptions 5 and 6, and released 137 
pages in full—responsive records included 214 pages of White House EOP records. 
A copy of this correspondence is attached hereto as Exhibit 9. The White House too 
had reviewed their records and determined the appropriate exemptions to invoke on 
their documents.  
62. 
As stated in Paragraph 25 above, FOIA Exemption 5 protects “inter-
agency or intra-agency memorandums or letters which would not be available by 
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law to a party other than an agency in litigation with the agency.” For this release, 
CDC-FOIA applied FOIA Exemption 5 for the same reasons stated in Paragraphs 
26 through 29 above.  
63. 
As already stated in Paragraphs 45 and 46 above, FOIA Exemption 6 
permits a federal agency to withhold information about individuals that “would 
constitute a clearly unwarranted invasion of personal privacy.” Exemption 6 was 
applied in this production to protect phone numbers and passcodes to internal 
conference lines, as well as cell numbers. This exemption was applied to emails and 
phone numbers of EOP staff. Release of high ranking EOP email addresses and 
phone numbers could reasonably be expected to constitute an unwarranted invasion 
of personal privacy by subjecting personnel to harassment and annoyance in 
conducting their official duties. 
64. 
As was the case in Paragraph 47 above, the CDC reviewed these records 
for reasonably segregable, non- exempt information and disclosed all reasonably 
segregable, non-deliberative material. The draft records that were fully withheld 
represent the agency’s tentative selection and deliberation on what studies and other 
material to include or exclude in the Guidance. The agency’s assessment of such 
material is deliberative. 
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Third Search and Production of Records 
65. 
On October 13, 2021, as it prepared to explain its search process in 
support of a motion for summary judgment, CDC-FOIA became aware that IT had 
only searched the “sent” mailboxes in each of the two previous searches. Confusing 
Plaintiff’s Request with a similar FOIA request processed at or around the same time 
that only requested sent items, the analyst searched only outgoing emails as he had 
done for the other request. On October 14, 2021, CDC-FOIA instructed IT to 
conduct a third and completely new search of all mailboxes (inbox, sent, drafts, 
deleted) for a comprehensive set of records. IT then searched the mailboxes of 
Rochelle Walensky (Director), Anne Schuchat (Principal Deputy Director), 
Christopher Jones (Associate Director for Communication), Robin Ikeda (Associate 
Director for Policy and Strategy), Mitchell Wolfe (Chief Medical Officer), Sherri 
Berger (Chief of Staff), Jeff Reczek (Director, Washington Office). 
66. 
The keywords and Boolean parameters used in this search were a) 
“CDC operational strateg*” OR b) “k-12 operational strateg*” OR c) “reopen*” 
AND “school*” OR d) “guidance” OR “guideline*” OR “procedure*” OR 
“strateg*” AND “reopen*” AND “school*”. 
67. 
Because this search encompassed records already processed and 
provided to Plaintiff during prior releases, those records were not re-processed and 
were instead marked as duplicates. 
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68. 
The search identified 1,667 pages of responsive records. On November 
19, 2021, the CDC released 1,667 pages to Plaintiff which were comprised of 114 
pages disclosed in part, 114 released in full, 1,273 pages withheld in full—
responsive records included 166 pages of White House EOP records. A copy of this 
correspondence is attached hereto as Exhibit 10.  
69. 
CDC-FOIA applied FOIA Exemption 5 for the same reasons stated in 
Paragraphs 26 through 29 above. The White House too had reviewed their records 
and determined the appropriate exemptions to invoke on their documents. 
70. 
FOIA Exemption 6 permits a federal agency to withhold information 
about individuals that “would constitute a clearly unwarranted invasion of personal 
privacy.” FOIA Exemption 6 was applied here for the same reasons stated in 
Paragraphs 45 and 46 above.  
71. 
As it had done in the previous releases, CDC-FOIA also reviewed these 
records for reasonably segregable, non-exempt information and disclosed all 
reasonably segregable, non-deliberative material. The draft records that were fully 
withheld represent the agency’s tentative selection and deliberation on what studies 
and other material to include or exclude in the Guidance. The agency’s assessment 
of such material is deliberative. 
72. 
By casting a wide net using a wider date range, general terms and 
searching through the centralized IT system, the CDC avers that it has searched all 
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files likely to contain responsive materials. To the extent there has been a delay it is 
due to the fact that the CDC has experienced a large uptick in FOIA requests as a 
result of the COVID-19 pandemic, vaccines, masks, and other mitigation strategies. 
Because of this increase, it has taken longer to respond to FOIA requests. The 
January change in administrations also added to the delay in responses. Other 
requestors are waiting for their FOIA request responses, including those filed ahead 
of Plaintiff’s. CDC-FOIA has received over 2,000 FOIA requests directly relating 
to COVID-19 in fiscal year 2021. Overall, around the time of Plaintiff’s FOIA 
Request, there were 552 requests pending in CDC-FOIA. Ninety-four of those 
requests were under expedited treatment.  
 
[Signature on following final page.] 
 
 
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Dated: 
December 10, 2021 
 
 
 
 
 
 
 
 
 
 
ROGER ANDOH 
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