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Sept. 19, 2012        

FDA’s ‘Minor Deletions’ Policy Violates Freedom of Information Act, Should Be Revoked

GAO Told Agency 20 Years Ago That Policy Violates Letter and Spirit of Transparency Law

WASHINGTON, D.C. – The Food and Drug Administration (FDA) must stop its longstanding practice of redacting portions of documents released to Freedom of Information Act (FOIA) requesters without giving requesters an immediate right to appeal within the agency, Public Citizen said in a petition sent to the agency today. The practice violates FOIA.

The FDA has a written policy stipulating that “minor deletions” from documents are not formal denials of information requests and, therefore, do not trigger a requester’s immediate right to appeal. The agency instead requires requesters to make a second request for “reconsideration” of any deletions before being allowed to appeal. If a requester does not do so, the FDA administratively closes the FOIA request without ever making a final determination. The agency does not define “minor deletions,” but in practice it relies on the policy to delete substantial portions – sometimes full pages – of documents.

Public Citizen’s petition urges the FDA to immediately revoke the “minor deletions” policy.

“The FDA’s policy is a blatant violation of FOIA,” said Julie A. Murray, attorney for Public Citizen and a signatory of the petition. “FOIA establishes that withholding any information responsive to a FOIA request constitutes a partial denial, entitling requesters to an administrative appeal. Forcing requesters to make two attempts just to get a proper response to a FOIA request is at odds with the streamlined FOIA process required by Congress.”

 The FDA’s failure to correctly classify releases with “minor deletions” as partial denials also calls into question the accuracy of data that the FDA provides to the public in its FOIA compliance reports, the petition said. As detailed in the petition, in 2011, FDA classified 97 percent of its dispositions as full releases, as opposed to releases in part or full denials. If the FDA includes responses with “minor deletions” among those full FOIA releases – as its deletions policy suggests it does – then the FDA’s record of responding to FOIA requests through full disclosure is artificially, and perhaps grossly, inflated.

The FDA has long known that the deletions policy is legally questionable. More than two decades ago, the Government Accountability Office (then the General Accounting Office) advised the agency to rescind its deletion policy, saying that it “creates a procedure for requesters that is not authorized by FOIA.”

Although the agency contends that the policy helps speed the processing of FOIA requests, there is seemingly no reason why it would take any longer for the agency to formally deny a request in part and give requesters the immediate ability to appeal, as other agencies already do.

“The agency’s current policy is contrary to law, unnecessary to serve FOIA requesters, and ultimately does a disservice to FOIA’s commitment to transparency,” Murray said. “It is past time for the FDA to revoke it.”

To read Public Citizen’s petition, http://www.citizen.org/documents/Petition-to-FDA-to-Revoke-Deletions-Policy-for-FOIA-Processing.pdf.

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