FDA attempting broad, vague change in FOIA language
The U.S. Food and Drug Administration, which has a hand in environmental issues such as mad cow disease and chemical contaminants in food, is trying to modify its FOIA exemption criteria.
In a proposed rule published Sept. 2, 2004, in the Federal Register (Docket No. 2004N-0214, http://www.regulations.gov/freddocs/04-19995.htm), the agency said it wants to “implement more comprehensively the exemptions contained in the Freedom of Information Act.” The proposed rule addresses three exemption categories that already exist under US law (national defense or foreign policy; personnel rules and practices; and exemptions included in other statutes).
Its first look into the proposal has the National Security Archive at George Washington University concerned, says general counsel Meredith Fuchs (202-994-7059, mfuchs@gwu.edu). One of the major issues may be how vaguely, and broadly, FDA is attempting to expand exemptions related to internal personnel rules and practices (which the agency has rarely used to date). No other federal agencies outside those dealing with national security, law enforcement, and the Dept. of Defense have adopted similar language, Fuchs says. And when they have, such language has been more precise and supported by more extensive explanatory statements. Fuchs say her organization should complete its initial review of the proposal by about the first of October 2004.
At the Center for Science in the Public Interest, which frequently deals with FDA, a first glance at the proposed rule didn’t alarm staff. But CSPI will continue to look at the rule, particularly aspects that would allow the agency to exempt information that could help someone circumvent US law (framed by FDA as a necessary change to deal with terrorism). CSPI, Jeff Cronin, 202-777-8370.
Another angle of the proposed rule, of uncertain importance so far, is that it is piggybacked on an almost identical final rule whose public comment period also ends Nov. 16, 2004. FDA says that if the final rule receives many adverse comments, it will be withdrawn, and the proposed rule will “provide the procedural framework to finalize the rule.”
A third angle that may be of interest is included in the discussion of exemptions included in other statutes, which FDA says are “becoming increasingly important to the agency.”
-- FDA media, Karen Mahoney, 301-827-1676
5:20:00 PM 
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