Judge orders CDC to stop deleting emails of departing staff, calling it ‘likely unlawful’

The CDC has likely been violating federal law for years by systematically deleting lower-level employees’ emails, a federal judge ruled Friday.

The ruling by U.S. District Judge Rudolph Contreras came in a lawsuit brought by a legal group allied with former President Donald Trump and was accompanied by an order forcing the public health agency to immediately halt the erasures.

“The Court concludes that CDC’s policy and practice of disposing of former employees’ emails ninety days after the end of their employment is likely unlawful,” Contreras wrote in a 36-page opinion .

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.”

Contreras also said that under longstanding federal recordkeeping laws, the National Archives should have referred the matter to the Justice Department but had failed to do so.

Spokespeople for DOJ and the Archives did not immediately respond to requests for comment. A CDC spokesperson had no immediate comment.

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.

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 Trump-aligned group is likely to prevail.

“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,” America First Legal’s executive director Gene Hamilton said in a statement. “The Biden-Harris Administration’s politicization of records management must end.”