Public Health and Law Enforcement Emergency Preparedness Workgroup

• Centers for Disease Control and Prevention, DHHS Bureau of Justice Assistance, USDOJ
• 19 pages
• Limited Distribution
• For Official Use Only
• June 2008

Disclaimer Statement in an MOU

Parties agree that this MOU does not create any private rights of action to the general public that would provide a basis for civil liability. Additionally, the MOU does not constrain the statutory or regulatory legal authority of the FBI to investigate federal crimes or any existing authorities of public health agencies.

1. Preamble

a. Foundation for Public Health and Law Enforcement Joint Investigations

i. This memorandum of understanding (MOU) formalizes the manner in which joint public health and law enforcement investigations will be conducted following suspected or confirmed intentional acts (e.g., biological, chemical, or radiological events) that pose a threat to the public’s health.

ii. In the instance of a bioterrorist event or similar public health emergency, public health will be the lead agency for the public health investigation and response; conducting epidemiological and laboratory activities; and directing public health interventions to prevent illness and to stop the spread of disease and disease-causing agents.

iii. The Federal Bureau of Investigation (FBI) has the primary authority to conduct criminal investigations of incidents that involve the intentional use of biological, nuclear, radiological, or chemical agents. When appropriate, the FBI will oversee and coordinate criminal investigative actions with the assistance of local and state law enforcement agencies through the use of the Joint Terrorism Task Force. All references to law enforcement or law enforcement activities within this document, therefore, should be considered within this context. These activities may include the collection of evidence for criminal prosecution, intelligence analysis, and forensics analysis.

iv. The parties recognize the “chilling effect” the presence of law enforcement officers may have on patients being interviewed, and on the medical professionals with whom public health routinely works and upon whom traditional public health surveillance – through mandatory disease reporting – depends. Terms in this agreement will address ways to minimize those effects.

v. The parties recognize that public health should not be used as an agent of law enforcement when conducting a joint investigation.

vi. The parties also recognize that protecting the health and safety of the public and response personnel is paramount in the conduct of joint investigations.

b. Public Health and Law Enforcement Goals for Joint Investigations

i. Public health goals are to: (a) protect the public health and safety; (b) prevent the spread of disease; and (c) ensure the health and safety of all responders.

ii. Law enforcement goals are to: (a) protect the public safety and maintain order; (b) prevent and investigate criminal acts; and (c) ensure the physical safety of all responders.

c. Public Health Activities for Joint Investigations

i. Detect unusual events (e.g., cluster of illness among persons with a link in time and place, or a single case of illness with unusual characteristics [e.g., severely ill patient with pustular rash on face and chest suggestive of smallpox])

ii. Confirm diagnosis by clinical and laboratory evaluation

iii. Expand disease surveillance
• Determine whether additional cases are occurring
• D etermine whether there are secondary cases (i.e., persons who become ill after exposure to known cases)

iv. Investigate and characterize additional cases

v. Collect and test clinical and non-clinical specimens (e.g., potential sources of contaminated food for suspected botulism cases), as appropriate

vi. Evaluate epidemiologic data to determine cause, risk factors, extent, and mode of spread of disease

vii. Develop and implement interventions

viii. Communicate findings to law enforcement and other agencies as appropriate through the establishment of command posts, a Joint Information Center, or other procedures

d. Law Enforcement Activities for Joint Investigations

i. Conduct threat identification and assessments, including intelligence collection and analysis

ii. Gather, preserve, process, and analyze evidence, including forensic examination

iii. Conduct interviews, and identify and verify facts

iv. Identify potential suspects

v. Apprehend suspects

vi. Testify to investigative findings during criminal prosecution

e. Selected Terminology

Agreements between public health and law enforcement agencies should recognize differences in meaning of terms used by each respective field and, to the extent possible, seek to clarify such terms as a means to minimize associated confusion or ambiguity. Examples of such terms are:

• “case(s)” and “victim(s)” – when used in a public health context, means a person or persons who, based on medical and public health criteria, are confirmed to have a disease of concern or are suspected to have a disease of concern

• “case” – when used in a law enforcement context, means a criminal investigation; “victim” means the person who is the object of a crime

• “overt” bioterrorism threats are scenarios where information is either derived from law enforcement intelligence and investigative sources, the perpetrator(s) announces responsibility for an act through an articulated threat, or the nature of the event reveals itself (e.g. a dissemination device is detected or witness reports)

• “covert” bioterrorism is characterized by an unannounced attack/release in which the presence of ill persons may be the first sign that something has occurred

• “chain of custody” is the methodology used to track and maintain control and accountability of all evidentiary items

• “surveillance” – when used in a public health context, refers to the ongoing, systematic collection, analysis, interpretation, and dissemination of data regarding a health-related event for use in public health action to reduce morbidity and mortality and to improve health

• “surveillance” – when used in a law enforcement context, means observation of premises or person(s) under suspicion

2. Terms of MOUs

Examples of options for specifying the terms of interagency MOUs for conducting joint investigations:

a. Such instruments may be in force indefinitely, but may be terminated by either party with adequate written notice.

b. Such instruments may be reviewed on an annual basis and modified as appropriate.

c. Modifications must be in writing and signed by authorized representatives of each participating agency.

3.

Legal References and Authorities

The parties to this agreement should review legal and jurisdictional authorities, and ensure compliance with applicable laws, rules, and regulations. Some of the categories for review may include:

a. Federal laws

• U.S. Constitution (e.g., 4th and 5th amendments regarding liberty and privacy)

• Applicable federal statutes related to biological, chemical, or radiological materials as weapons, including:

o Title 18 U.S.C. §2332a (Use of Weapons of Mass Destruction)
o Title 18 U.S.C. §175 (Biological Weapons Anti-Terrorism Statute)
o Title 18 U.S.C. §229 (Chemical Weapons Convention Implementation Act)
o Title 18 U.S.C. §832 (Unlawful Use of Radiological Agents as Weapons)

• Federal privacy laws (e.g., The Privacy Act, 5 U.S.C. § 552a, and the Health Insurance Portability and Accountability Act [HIPAA] Privacy Rule [45 C.F.R. §§ 164.512(b) {public health activities}, (f) {law enforcement purposes}, and (j) {serious threat to health or safety}])

…

6. Notification and Information-sharing Following Detection of Problem

a. Public health steps: Steps for consideration by public health following detection of problems (e.g., through public health surveillance, laboratory reporting, physician notification) that require notification of and/or sharing of information with law enforcement

i. Notification of law enforcement
• Law enforcement should be notified upon recognition of specific diseases, and/or other factors and considerations triggering joint investigations (see element 5 above)
• Specific public health official(s) should be designated as responsible for notifying law enforcement
• Specific law enforcement official(s) should be identified for the purpose of being contacted for notification (e.g., the FBI Field Office Weapons of Mass Destruction Coordinator)
• Methods of contact and information sharing on a 24/7 basis should be determined

ii. Sharing information with law enforcement
• Categories of information that might be shared should be specified and might include identifying information (note: when identifying patient information is available, public health should be aware that law enforcement may want to cross-check names through law enforcement databases); brief summary of clinical information; and brief summary of epidemiological information (e.g., case counts, dates of onset, demographics, relevant location information [places of residence, work, avocational activities, other])
• Legal privacy protections and procedures to protect privacy and confidentiality of information should be specified
• Reports describing specimens collected, analytical methods used, and results of analytical procedures should be shared if such information will assist law enforcement investigations

b. Law enforcement steps: Steps for consideration by law enforcement following detection of potential threats (e.g., through intelligence reports, law enforcement inter-agency reporting) that require notification of and/or sharing of information with public health

i. Notification of public health
• Public health should be notified upon recognition of specific factors/considerations triggering joint investigations (also see element 5 above)
• Specific law enforcement official(s) (office/position) should be designated as responsible for notifying public health
• Specific public health official(s) (office/position) should be identified for the purpose of being contacted for notification on a 24/7 basis

ii. Sharing information with public health

• Information that might be shared includes briefings or assessments of a potential threat(s) deemed potentially credible by law enforcement
• Information may include relevant facts from intelligence reporting or ongoing criminal investigations
• Limitations regarding what can be shared with public health should be identified and may include: classified information requiring security clearances; sensitive case information regarding potential subjects (particularly prior to arrest) or law enforcement operations; confidential informants; intelligence collection sources and methods; and Grand Jury protected information
• Legal privacy protections and procedures to protect privacy and confidentiality of information should be specified

c. T hreat identification process: Local jurisdictions should consider developing a process for evaluating potential threats as identified by public health, and/or law enforcement, and/or FBI. For example, if public health identifies a case of anthrax, then the identified point of contact (i.e., Weapons of Mass Destruction [WMD] Coordinator or FBI liaison) would be notified and convene a conference call (involving the local WMD Coordinator, law enforcement, and designated public health representatives) for the purposes of assessing a possible WMD threat and determining the subsequent course of action (e.g., information sharing only; further background checks; on-scene response; or joint investigation). If a potential credible threat is identified locally, the FBI’s national-level WMD threat assessment process (activated through the FBI WMD Coordinator) will further assist local response agency representatives with evaluation by relevant federal agency law enforcement, technical, and public health experts.

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