Judge Sides With NIH, Agrees to Redact Name of Chinese Researcher

Acting Director of National Institutes of Health Lawrence Tabak testifies during a hearing before the Labor, Health and Human Services, Education, and Related Agencies of House Appropriations Committee at Rayburn House Office Building on Capitol Hill May 11, 2022. (Alex Wong/Getty Images)

A U.S. judge has sided with the National Institutes of Health (NIH) and ordered the sealing of a Chinese scientist’s name, even though the name was made public by the NIH in 2020.

U.S. Magistrate Judge John Anderson on July 22 ordered documents listing the name placed under seal, granting a motion by the NIH.

The documents had been released by the NIH to Empower Oversight, the plaintiff in the case.

Anderson said he found that the “targeted and limited sealing” was “the least drastic alternative available” and that First Amendment presumptions in favor of public access to records were outweighed for reasons set forth in the NIH’s filings.

The NIH had said that it “inadvertently failed” to redact the names of the Chinese scientist and the NIH worker who corresponded with the scientist.

While the Freedom of Information Act requires agencies to disclose such information, the names were redacted elsewhere in filings under an exemption that covers the release of information that would be a “clearly unwarranted invasion of privacy,” government lawyers conveying the NIH’s position told the court.

“Exemption 6 was applied here due to the heightened public scrutiny with anything remotely related to COVID-19. Consequently, all email addresses, direct telephone numbers, identities of the submitter and NIH database curators that the submitter dealt with, have been withheld,” Gorka Garcia-Malene, an NIH official, said in a declaration to the court, adding that “there is no public interest in the disclosure of this information.”

Order Entered Too Soon

Empower Oversight responded in a motion on July 27, asserting that the judge entered his order too soon.

“The order was issued before Empower Oversight timely filed its opposition to NIH’s motion to seal,” plaintiffs said in the filing.

The nonprofit noted that it had seven days to respond to the NIH’s July 15 motion, but that Anderson entered the order before that period of time elapsed.

Opposition to the motion was filed on July 22. But Anderson did not consider the opposition because his order was entered five minutes earlier, according to the court docket.

Anderson’s chambers referred a request for comment to the clerk’s office for the U.S. courthouse in Alexandria, Virginia. The clerk’s office said it would only respond to inquiries sent by mail.

Empower Oversight asked the judge to set aside the order and ultimately reject the government’s motion.

No ‘Compelling Government Interest’

The Chinese scientist in question was identified as Kangpeng Xiao of South China Agricultural University in an exhibit that is now under seal. Xiao successfully lobbied the NIH to remove data his team submitted to the Sequence Read Archive, a database the agency manages.

The team had submitted sequencing data from a pangolin-derived coronavirus that researchers claimed was very similar to SARS-CoV-2. Also known as the CCP (Chinese Communist Party) virus, SARS-CoV-2 causes COVID-19. The team’s research, which was later corrected, was published in Nature.

Xiao’s name has been public since 2020, when another nonprofit, U.S. Right to Know, published emails (pdf) showing his correspondence with the NIH. The messages were highlighted by Jesse Bloom, a Fred Hutchinson Cancer Research Center researcher, in a preprint paper (pdf) he authored on the deleted data.

The emails and paper were released months before the NIH provided Xiao’s name to Empower Oversight.

“Thus, the information that NIH now seeks to seal was already public before it produced the relevant email to Empower Oversight,” the nonprofit said in an opposition filing. Plaintiffs also said the Freedom of Information Act doesn’t provide any “‘heightened’ protections” because of COVID-19 or any other matter.

The group argued that the NIH had failed to present “a compelling governmental interest” that supported sealing the name of Xiao and the NIH worker with whom Xiao corresponded.

Xiao could not be reached. His university did not respond to a request for comment.

Under Scrutiny

The NIH has been under scrutiny for its handling of requests from Xiao and other scientists, including one whose identity has not yet been confirmed.

That scientist asked in June 2020 for SARS-CoV-2 sequences to be pulled from the database, and the NIH complied.

The NIH has maintained that the data was still accessible, but only offline.

That was an “error” Dr. Lawrence Tabak, the agency’s acting head, told lawmakers in May.

He said the data should have instead been “suppressed,” which would have kept it online but made it harder to find than normal sequences.