Letter to Mike Johanns re: FOIA request on BSE enforcement

July 12, 2005

Secretary Mike Johanns

United States Department of Agriculture
Room 200-A, Whitten Building
12th Street and Jefferson Drive, S.W.
Washington, DC 20250

Dear Secretary Johanns,

We are writing to draw your attention to your agency’s failure to fulfill its responsibilities under the Freedom of Information Act, specifically on the topic of agency regulations for preventing BSE.  On December 23, 2004, Public Citizen filed a Freedom of Information Act request, which asked the Food Safety Inspection Service for “all records pertaining to the enforcement of BSE-related regulations in slaughter and processing plants, including but not limited to non-compliance reports and other correspondence between the agency and establishments.” 

The impetus for this request was a letter sent to FSIS by Mr. Charles Painter, Chairman of the National Joint Council of Food Inspection Locals, on December 8, 2004.  In the letter, sent on behalf of the NJC, Mr. Painter presented concerns about the removal of specified risk materials (SRMs) from cattle and FSIS inspectors’ ability to enforce the export requirements for products destined for Mexico.  Specifically, the letter states that members of the union had reported that:

  1. Plant employees are not correctly identifying and marking all heads and carcasses of animals over 30 months old.  Therefore, plant employees and government personnel further down the line are unaware that numerous parts should be removed as SRMs and these high risk materials are entering the food supply.
  2. [O]n-line inspectors are not authorized to take actions when they see plant employees sending products that do not meet export requirements past the point on the line where they can be identified and removed.

Mr. Painter, on behalf of the NJC, raised concerns about age determination and SRM removal in hopes that the agency would address an inadequate policy.   Instead, the agency set out to discredit Mr. Painter in the press by referring to his concerns as “unsubstantiated” and by opening a misconduct investigation on the grounds that he did not name the plants (and consequently, FSIS inspectors) where violations occurred.  FSIS’ focus on Mr. Painter providing the names of plants is misplaced, as it is widely acknowledged that routine agency records called noncompliance reports (NRs) would allow the agency to determine where this problem had occurred.  In meetings with FSIS officials, representatives from Public Citizen were told that these documents exist.  But rather than release these documents – which are routinely released to satisfy FOIA requests – the agency chose to spend time and money pursuing retaliatory investigations of union officials. 

Even the chairman of the House Agriculture Appropriations Subcommittee, Rep. Henry Bonilla, has pointed out that the key to determining the extent of this problem lies in the agency’s own records.   On February 17, 2005, he ended the subcommittee’s hearing with the USDA’s Office of Inspector General by noting that, “Just to reiterate, the system for FSIS is that if it finds that specified risk materials are not being removed they immediately, [sic] they can issue a noncompliance report to the plant to determine whether or not this is just a disgruntled individual or if there is a serious problem.” 

We urge you to order the release of the documents that would satisfy our FOIA request.   If the agency is not willing to adequately investigate this policy lapse, groups like Public Citizen are left to investigate the issue ourselves.  To do that, we rely on FOIA and other laws that guarantee public access to government records. 

Attached to this letter is a timeline which describes the events that have taken place in the six months since we submitted our request.   Most recently, agency officials including Mr. Jonathan Theodule, Acting Director of the Executive Correspondence and Issues Management Staff, have admitted that the documents have been collected from plants around the country.  Yet we have still not received them. 

This leads us to ask: What is the agency afraid of?   What is it trying to hide by not release the documents? 

The concerns outlined by Mr. Painter’s letter are of vital interest to consumers.  And in light of the recent lapses in the agency’s BSE surveillance program which led to a seven month delay in the disclosure of a case of BSE in Texas, the credibility of the agency’s entire BSE program is at stake.  The public has the right to know if policies designed to prevent the spread of BSE are being violated, and the agency’s continued refusal to release relevant documents intensifies the appearance of a cover-up.  We urge you to expedite the release of the documents that will fulfill our FOIA request.

Sincerely,

Wenonah Hauter

cc:

Senator Saxby Chambliss, Chairman, Senate Agriculture, Nutrition and Forestry Committee

Senator Tom Harkin, Ranking Member, Senate Agriculture, Nutrition and Forestry Committee

Senator Thad Cochran, Chairman, Senate Appropriations Committee

Senator Robert Byrd, Ranking Member, Senate Appropriations Committee

Senator Robert Bennett, Chairman, Senate Subcommittee on Agriculture, Rural Development, and Related Agencies

Senator Herb Kohl, Ranking Member, Senate Subcommittee on Agriculture, Rural Development, and Related Agencies

Representative Robert Goodlatte, Chairman, House Agriculture Committee

Representative Colin Peterson, Ranking Member, House Agriculture Committee

Representative Jerry Lewis, Chairman, House Appropriations Committee

Representative David Obey, Ranking Member, House Appropriations Committee

Representative Henry Bonilla, Chairman, House Subcommittee on Agriculture, Rural Development, Food and Drug Administration, and Related Agencies

Representative Rosa DeLauro, Ranking Member, House Subcommittee on Agriculture, Rural Development, Food and Drug Administration, and Related Agencies

Representative Maurice Hinchey