Dodging FOIA Could Now Mean Arrest and Strip Search, Depending on Who’s Asking

The criminal prosecution of a retired government scientist for evading Freedom of Information Act (FOIA) requests signals a potential shift in how the Justice Department enforces transparency laws, raising concerns that such enforcement may become selective and politicized.

On May 8, 2026, Dr. David Morens, a 78-year-old retired government scientist and former senior adviser at the National Institute of Allergy and Infectious Diseases (NIAID), was arraigned in Greenbelt, Maryland, on felony charges. The charges allege that Morens concealed communications related to virus research from FOIA requests.

Following his arrest by armed federal agents, which included a strip search, Morens now faces penalties that could result in decades of imprisonment. Prosecutors allege that Morens used personal email accounts to circumvent federal records requirements and deliberately deleted records to avoid disclosure.

The allegations are supported by a message regarding communications about Covid research, in which Morens reportedly wrote:

“I learned from our FOIA lady here how to make emails disappear after I’m FOIA’d but before the search starts. … Plus I deleted most of those earlier emails after sending them to my Gmail.”

Prosecutors’ evidence

The severity of the charges against Morens stands in contrast to historical Justice Department handling of records evasion. For decades, the department has typically treated FOIA evasion as a civil matter rather than a criminal one.

Previous high-profile cases involving the mishandling of sensitive materials saw limited penalties. Sandy Berger, a national security adviser to Bill Clinton, received probation, a fine, and community service after repeatedly removing classified documents from the National Archives. Hillary Clinton was not charged for her use of a private email server.

If convicted, Morens faces up to five years for conspiracy and up to 20 years per count for the destruction of records, in addition to penalties for concealment.

Concerns Over Selective Enforcement

The prosecution has raised questions regarding whether the Justice Department is applying these criminal standards consistently. The FOIA requests that Morens allegedly attempted to evade were submitted by a group of organizations including Judicial Watch, the Heritage Foundation, and U.S. Right to Know.

The central concern is whether similar criminal charges would be pursued if the requesters were press freedom organizations or environmental groups that are less politically aligned with the current administration. Selective criminal enforcement risks transforming FOIA into a system where compliance is influenced by the identity of the party requesting the records.

Systemic Transparency Failures

This individual prosecution occurs alongside a broader decline in federal commitment to transparency. Secretary of Health and Human Services Robert F. Kennedy Jr. Has reduced the staffing of most FOIA offices within his department.

The impact is evident at the bureau where Morens previously worked, where the FOIA office currently manages a backlog of over 1,100 requests. The agency is more than two months late in posting its annual FOIA report, which is intended to track the administration’s responsiveness to public records requests.

Other systemic issues include the removal of scientific, environmental, and public health information from federal websites, as well as the termination of FOIA officials for releasing information disliked by the administration.

To address willful evasion and systemic noncompliance, some suggest structural incentives rather than individual prosecutions. One proposed measure is to tie the discretionary budgets of agency leadership to FOIA performance, which would reward lawful disclosure and penalize chronic failure.

While the actions alleged against Dr. Morens warrant accountability, the case serves as a test of whether the government is establishing a fair and even standard for enforcing transparency laws. If the law is applied selectively, it risks becoming a tool for the powerful rather than a mechanism for equal access to government records.