Your Right to Know

Fri, 17 Sep 2004 21:20:00 GMT

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 FDA says that if the final rule receives many adverse comments, it will be withdrawn, and the proposed rule will “provide the procedural framework to finalize the rule.”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

Tue, 17 Aug 2004 01:28:41 GMT

Journalism Groups Join SEJ on Homeland Security Comments

Eleven major journalism groups joined the Society of Environmental Journalists to voice concern over proposed secrecy on environmental impacts of actions by the Department of Homeland Security. SEJ filed official comments July 14, 2004, on a DHS proposal that allowed considerable secrecy in how it carries out the National Environmental Policy Act (NEPA). After the deadline for comments on the DHS proposal was extended, the Coalition of Journalists for Open Government signed on to an expanded version of the SEJ comments. Among the groups specifically endorsing these comments were the American Society of Newspaper Editors, the Associated Press Managing Editors, the Newspaper Association of America, the Society of Professional Journalists, and the Reporters Committee on Freedom of the Press. Text of comments.

-- "Groups Question Homeland Security Policy," Associated Press via Kansas City Star, Aug. 16, 2004, by Elizabeth Wolfe, free registration required.

Mon, 16 Aug 2004 21:14:31 GMT

Data Challenge Keeps Grass Off Endangered List

The US Fish and Wildlife Service appears to have backed off of a proposal to put the Slickspot peppergrass, a rare plant with no specific use, because of a challenge under the "Data Quality Act," according to the OMB Watcher. Environmentalists and open-government groups have worried that the obscure data law would be used to suppress information or block regulatory action. As reported by OMB Watcher, this case raises interesting questions about how the law can be used to shift the burden of proof and generate new forums of appeal beyond normal regulatory proceedings. The challenger, in this case, was the US Air Force.

-- "Data Quality Challenge Helps Bump Species from Consideration for Endangered List," OMB Watcher, August 9, 2004, published by OMB Watch.

Mon, 16 Aug 2004 20:43:17 GMT

Washington Post: Industries Use Data Law To Evade Regulation

The Washington Post published a 4,600-word feature on the "Data Quality Act," systematically analyzing all major complaints filed under the obscure law. The Post found that it was mostly used by industry groups to thwart government regulations, especially ones posing potential risk to environmental health and safety.

-- "The Fine Print: A Policy Puts Science on Trial; 'Data Quality' Law Is Nemesis Of Regulation," Washington Post, August 16, 2004, by Rick Weiss.

Tue, 15 Jun 2004 18:10:45 GMT

DHS Proposes Making Environmental Impact Statements Secret

The Department of Homeland Security (DHS) proposed on June 14, 2004, making secret part or all of some Environmental Impact Statements on its actions. The proposed directive, published in the Federal Register, would carve a major loophole in the 34-year-old National Environmental Policy Act -- which requires that the federal government publicly disclose the environmental impacts of major federal actions before they are taken.

The directive applies only to DHS actions, but these actually cover a broad array of topics that environmental reporters might cover. DHS jurisdiction includes things ranging from oil spills (Coast Guard); hazmat and hazardous transportation; flood plain designation (FEMA); and chemical plant security; to standards for cleanup after a nuclear accident. It would restrict access to part or all of some Environmental Impact Statements (and Assessments). It includes provisions for segregating the portions DHS does not want to publish and publishing the rest. It also allows DHS to black out the whole document if it chooses. Full story ....

Tue, 15 Jun 2004 16:20:15 GMT

USDA to Release More Info on "Biopharming"

Later this month, USDA is expected to announce new policies aimed at making available to the public more information about plants that are genetically engineered to produce drugs or industrial chemicals. This action was spurred by a June 2, 2004, report from the Center for Science in the Public Interest which indicated that applications to USDA for planting biotech crops that produce drugs and industrial chemicals are on the rise.

The CSPI report noted, "USDA has received 16 new applications for biopharming permits in the past 12 months. About two-thirds of those applications involved a food crop such as corn, rice, or barley, but virtually every other salient detail about the application, sometimes even the name of the drug or chemical being produced, is shielded from public view." Release. Report. Author: Greg Jaffe, 202-332-9110.

A June 2, 2004, USA Today article on this controversy reported that Cindy Smith (USDA deputy administrator for biotechnology regulatory services) said that new procedures are needed because larger field studies of such crops are planned in the next five years. USDA press: Jerry Redding, 202-720-4623. USDA Biotechnology Regulatory Services: Website.

Mon, 14 Jun 2004 20:33:05 GMT

Louisville Paper Uses Risk Info for Watchdog Report

The Louisville Courier-Journal has used chemical risk information to do a special report on how a three-state metro area might be affected by what chemical companies do -- or don't do -- to make surrounding residents safer. The information was meant to make communities safer, but the industry has urged government to make it secret, claiming terrorists could exploit it. The worst-case chemical release in the Louisville area could harm the health of some 810,000 people. The Courier-Journal series discusses not only the hazards, but also what companies have done to make their plants safer, the debate over access to risk information, and the bills currently before Congress that sponsors say address chemical plant security. Full story ....

Fri, 04 Jun 2004 13:02:07 GMT

DC Bureau Chiefs Plan More Secrecy Coverage

If you are trying to shine a light on government secrecy, it helps to have the Washington bureau chief of a major news organization working on the project. Or better yet, 21 of them.

A new and swelling coalition of journalists seeking to open the federal government to more public scrutiny will be getting more eyes and ears. The Washington bureaus of many major news organizations are now planning to create a secrecy beat.

That was one upshot of a largely unpublicized luncheon at the National Press Club May 3, 2004, attended by the 21 bureau chiefs, as well as representatives from the First Amendment Center, the Reporters Committee for Freedom of the Press, and the Coalition of Journalists for Open Government. It was put together by Andy Alexander, DC bureau chief for Cox Newspapers and the new chair of the American Society of Newspaper Editors' FOI Committee. Full Story ....

Thu, 20 May 2004 16:51:24 GMT

AP Boss Curley Declares Campaign Against Government Secrecy

Associated Press President and CEO Tom Curley has announced a plan to strengthen his organization's advocacy of open government. He unveiled it May 7, 2004, in Riverside, CA, as he spoke in the Hays Press-Enterprise Lecture series. "The powerful have to be watched, and we are the watchers," Curley said, "and you don't need to have your notebook snatched by a policeman to know that keeping an eye on government activities has lately gotten a lot harder."

Curley said, according to an AP story, that the AP will continue doing open records compliance audits at the state level. He said that state AP bureau chiefs will monitor whether still and video cameras have access to state and federal courtrooms, and that AP will mount legal challenges when access is denied. Full story ....

Thu, 20 May 2004 15:11:59 GMT

Hello, Sailor: Judge Tosses Prosecution of Greenpeace for Speech

A US district judge in Florida threw out a US Justice Dept. prosecution of Greenpeace protesters for political speech under an antique maritime law May 19, 2004. It was a personal defeat to Attorney General John Ashcroft, and an embarrassing failure for his department's policy of aggressive attacks on First Amendment rights in the name of "security."

Miami District Judge Adalberto Jordan did not make the ruling on grounds related to protection of free speech under the first amendment. He directed an acquital on technical and evidentiary grounds in the second day of the trial, after the prosecutors had presented their case and Greenpeace lawyer Jane Moscowitz had moved for a dismissal. Miami Herald story. Fuller coverage and links...

Tue, 18 May 2004 19:34:09 GMT

TSA Issues Rule on Port, Maritime Info Secrecy

The Transportation Security Administration has issued a rule extending new secrecy to some kinds of port and maritime information. The rule, published May 18, 2004, extends to maritime transportation facilities the cloak of heavy TSA secrecy that heretofore applied mainly only to air transport. Still unclear at this point is whether the new rule may restrict access to information used by environmental reporters.

While the non-classified "Sensitive Security Information" category administered by TSA seems intended to apply mainly to security plans which shipping companies and terminals are required to file under certain federal laws, the scope of information covered by the new "interim" rule remains unclear. For example, TSA can restrict access to information not merely because of security concerns, but also to protect privacy or confidential business information. Full story ...