Del Bigtree wastes the CDC’s time during the COVID-19 pandemic with an abusive FOIA lawsuit

A longstanding weapon that cranks like to wield against defenders of science is the dishonest Freedom of Information Act (FOIA) request. At the federal lever, the FOIA was intended to make it possible for citizens to hold their government accountable by being able to obtain documents, with relatively few restrictions. Indeed, most states now have a version of FOIA covering state government documents. Unfortunately, FOIA requests have been weaponized against scientists working for federal institutions and state universities. I myself have been at the receiving end of such abusive FOIA requests myself. Last year, Gary Null’s lawyer demanded my emails with Dorit Reiss, Dr. Steve Novella, Stephen Barrett, Jon Entine, Dr. Paul Offit, and others, as I documented. He got the emails a while back but to my knowledge hasn’t published any of them. (I did publicly warn him that there was nothing interesting, nefarious, or even particularly embarrassing there. I’m guessing he’s very disappointed.) I’m not alone, either. Quite a few pro-science advocates have been targeted, be it by antivaxxers, climate science denialists, or others.

Last week, Del Bigtree was practically crowing with delight on his latest episode of Highwire with Del Bigtree. (I’m not going to embed the video; you can click on the link if you’re really interested and can stomach Bigtree’s channeling of Alex Jones.) The reason was that he had “won” a lawsuit over an abusive FOIA request that he’d filed with the CDC. My first thought reading and watching his preening self-congratulation and propagandizing was: How despicable to waste the CDC’s time like this as the coronavirus pandemic was hitting American shores. Of course, Bigtree loves this shtick. For instance, last year, he used abusive FOIA requests to obtain information about the studies used to license the MMR and proceeded to do what he does best: Misrepresent and twist them. The same sort of thing is going on here, except that Bigtree is misrepresenting science (as always) and the law (as usual). Thankfully, Dorit Reiss has already written about the legal issues and some of the science, and Vincent Ianelli has written about some of the science. There is, however, always room for the arrogant blinky clear box of multicolored lights to weigh in in his own inimitable fashion in order to lay down some not-so-Respectful Insolence. (Given his history of deception and disinformation, Bigtree doesn’t merit Respectful Insolence.)

So let’s sew what Bigtree posted about his FOIA request on the website of ICAN, the antivaccine group he fronts that was largely funded by Bernard and Lisa Selz, as I discussed last year. So let’s hear Bigtree’s version of what happened:

In summer 2019, ICAN submitted a Freedom of Information Act (FOIA) request to the CDC requesting “All studies relied upon by CDC to claim that the DTaP vaccine does not cause autism.”

ICAN also submitted this same request for HepB, Hib, PCV13 and IPV, as well as requesting the CDC provide studies to support the cumulative exposure to these vaccines during the first six months of life do not cause autism.

Despite months of demands, the CDC failed to produce a single specific study in response to these FOIA requests.

In his podcast and propaganda, Bigtree tried to make it sound as though the CDC was stonewalling. More than likely, as Reiss explained, the delay in responding to the FOIA request was not unusual for a federal agency, as this blog entry from the federal government explains:

One of the frustrations with the FOIA process that we hear about most frequently is the delay in an agency’s response to a request. Frequently, requesters contact us to ask why an agency has not responded within the 20 working days response time that is prescribed in the law. We understand that delays are extremely frustrating; unfortunately they are all too common at agencies that receive a large volume of requests and at agencies that are struggling to respond to a backlog of old requests.

Federal agencies have real work to do, and FOIA requests are usually not at the top of their priorities, and understandably so. One might argue that these requests should be higher, so that at least a response is received within the 20 working days, but many federal agencies are also understaffed. If Congress wants agencies to be able respond to FOIA requests faster, it needs to allocate more resources (i.e., funds) to the process. So if an agency is slow. For instance, the CDC received 1,422 FOIA requests last year and completed 1.293 of them. This is an unusually large number. If you look back several years, you’ll see that the CDC usually gets between 1,000-1,200 requests in a typical year, but in FY 2018 it received 1,399 and in FY 2019 it received 1,422. (One wonders how many of those were from antivaxxers.) In any event, it likely wasn’t because the CDC was stonewalling that it didn’t respond to Del Bigtree’s abusive FOIA for several months.

More interesting, what caught my interest right away was the strangely specific nature of the FOIA request:

  • “All studies relied upon by CDC to claim that the DTaP vaccine does not cause autism.”
  • The same request for HepB, Hib, PCV13 and IPV, “studies to support the cumulative exposure to these vaccines during the first six months of life do not cause autism.”

Of course, my first reaction was simple: Read it for yourself! It’s not as though the CDC website doesn’t cite numerous papers in its discussions of vaccine safety. My second reaction was: Dude, have you never heard of PubMed? My third reaction was: Clearly Bigtree doesn’t understand the scientific process. The conclusion that vaccines are not associated with an elevated risk of autism is not something that’s been demonstrated by just one study or even a group of studies. It’s a conclusion that’s been reached after decades of studies, coupled with an increasing knowledge of the genetic basis of autism which has been increasingly shown to be mostly genetic in nature.

Bigtree is, however, a skilled antivaxxine propagandist and promoter of disinformation. So he definitely knew what he was doing. He knew that a FOIA request to the CDC would likely take a long time, which he could then spin into as being indicative of a coverup. He then knew that, if he sued, whatever he ended up getting out of the CDC, he could spin it as not showing that vaccines don’t cause autism. Never mind that, as Reiss explains, the court ruling on the FOIA request has nothing to do with the question of whether vaccines cause autism. The court was merely ruling on the FOIA request, not on any scientific question of whether the studies provided by the CDC show that vaccines don’t cause autism, as Reiss pointed out:

The vast majority of this complaint is legally irrelevant to the ICAN FOIA lawsuit. The question the court needed to address in the ICAN FOIA lawsuit was not whether the vaccines cause autism. That’s not an FOIA question and not something the court will need to reach to address whether the plaintiffs are entitled to the materials.

And:

To win their FOIA lawsuit, the complaint had to show that there is a basis to think obtainable records exist, and the government is not handing them over. There is not much of that in the complaint.

There is no way, shape or form that the court addressing this ICAN FOIA lawsuit would rule on whether vaccines cause autism because that’s not what FOIA is about. Including that lengthy discussion suggests strongly that the complaint was not filed with a view to achieving a meaningful legal victory on the requests, but to use as talking points when the result – whatever it is – is presented to ICAN’s followers, and maybe others. In other words, this was not an honest lawsuit.

Del Bigtree’s antivaccine propaganda organization filed the lawsuit. Of course it wasn’t honest! Bigtree is a master of disinformation, and this lawsuit was clearly meant to provide him with more fodder to spread antivaccine misinformation. Reading between the lines, likely the CDC just wanted this obviously abusive lawsuit to go away; so likely it assigned someone to pick some studies to throw Bigtree’s way. Personally, I probably wouldn’t have stopped at just 20 studies (there are definitely more). On the other hand, no number of studies would have satisfied Bigtree, and no matter how many studies the CDC threw back in his face the result would have been the same. Bigtree would have declared “victory” and that the evidence was not enough for him. Again, he’s not an honest player in this. From my perspective, his history very clearly shows that.

Amusingly, as Dr. Ianelli shows, even antivaxxers were not convinced that this was a “win.””

So what did Bigtree get? Back to the ICAN blog post/press release:

In the stipulation, the CDC was only able to identify 20 studies:

-One relating to MMR (a vaccine ICAN did not challenge)

-Thirteen relating to thimerosal (an ingredient not in any of the vaccines ICAN queried)

-Five relating to both MMR and thimerosal

– One relating to antigen (not a vaccine) exposure.

On the CDC’s list of studies was a recent review by the Institute of Medicine (IOM), paid for by the CDC, which conducted a comprehensive review for studies relating to whether DTaP does or does not cause autism. The result was that the IOM could not identify a single study to support that DTaP does not cause autism. Instead, the only relevant study the IOM could identify found an association between DTaP and autism.

In other words, the CDC listed a review in response to the FOIA requests that proves that there are no studies to support that DTaP does not cause autism.

There are some inconsistencies here. For one thing, why did Bigtree ask for “cumulative exposures during the first six months”? As more than one person has asked, does he no longer believe that MMR causes autism? After all, MMR is usually not administered before 12 months of age, and it was the MMR that, according to Andrew Wakefield, resulted in “autistic enterocolitis.”

The second part about a study relating to “antigen (not a vaccine) exposure” is pure scientific ignorance. As Dr. Ianelli pointed out, “most folks will understand that those antigens come from vaccines!!!” I mean, come on! The title of the study was Increasing Exposure to Antibody-Stimulating Proteins and Polysaccharides in Vaccines Is Not Associated with Risk of Autism. The source of the antigen exposure is listed in the title, and the conclusions were quite clear:

We found no evidence indicating an association between exposure to antibody-stimulating proteins and polysaccharides contained in vaccines during the first 2 years of life and the risk of acquiring ASD, AD, or ASD with regression. We also detected no associations when exposures were evaluated as cumulative exposure from birth to 3 months, from birth to 7 months, or from birth to 2 years, or as maximum exposure on a single day during those 3 time periods. These results indicate that parental concerns that their children are receiving too many vaccines in the first 2 years of life or too many vaccines at a single doctor visit are not supported in terms of an increased risk of autism

Those who follow the antivaccine movement will know that this study was looking specifically at the antivaccine trope of “too many, too soon,” more specifically, the claim that the “large” number of vaccines somehow overload the immune system or expose the baby to too many “toxins,” resulting in autism. The study above is powerful evidence against that hypothesis, which is why I no longer call it a hypothesis but an antivaccine trope. As Dr. Ianelli points out, this isn’t even the only study coming to that conclusion. These studies covered the vaccines in the US schedule as well as some used in Asia. Also, as Reiss pointed out, some of the thimerosal studies looked at individual vaccines, such as this one, which looked at the DTP vaccine in increasing doses and found that increasing dose was negatively correlated with the risk of neurodevelopmental disorders. No, I’m not saying that DTP prevented such disorders in the study, only that the study does not show any signal at all that DTP might be associated with autism.

There’s also the issue of biological plausibility. Again, increasingly evidence indicates that autism is primarily genetic in nature. Combine that body of evidence with the large body of evidence that vaccination is not associated with an increased risk of autism, and there is no reason to suspect that vaccines cause autism. Scientists know that you have to look at the totality of evidence; antivaxxers want to cherry pick studies. Moreover, their requests are inherently not made in good faith. If you produce studies looking at exactly what they say they want the studies to look at and they’re negative, antivaxxers will move the goalposts. It’s what they do. As for the cherry picked quote from the IOM, if you actually read the IOM report form 2013, it concludes quite clearly that vaccines are very safe, are not associated with autism, and that serious adverse events are rare. Indeed, in the report brief, the IOM explicitly wrote:

Upon reviewing stakeholder concerns and scientific literature regarding the entire childhood immunization schedule, the IOM committee finds no evidence that the schedule is unsafe. The committee’s review did not reveal an evidence base suggesting that the U.S. childhood immunization schedule is linked to autoimmune diseases, asthma, hypersensitivity, seizures, child develop- mental disorders, learning or developmental dis- orders, or attention deficit or disruptive disorders.

That’s a pretty clear repudiation of antivaccine claims.

So what does this lawsuit mean? What it most definitely does not mean is that vaccines cause autism or that there isn’t copious evidence that vaccines are not associated with autism. Instead, what it very likely means is that the CDC, in order to get rid of a clearly vexatious lawsuit while in the middle of dealing with a pandemic, threw together a quick list of studies, doing the bare minimum possible to make the lawsuit go away so that the resources being wasted dealing with this lawsuit could be put back into dealing with a pandemic likely to cause the deaths of thousands of Americans. That Bigtree would pursue such a dishonest lawsuit under such conditions does not speak well of him.