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A shot in Congress’ arm

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Open government advocates are working to lift a veil of secrecy over a proposed federal agency to oversee development of…

Open government advocates are working to lift a veil of secrecy over a proposed federal agency to oversee development of bioterrorism vaccines.

From the Winter 2006 issue of The News Media & The Law, page 22.

By Amanda Buck

When Sen. Richard Burr (R-N.C.) proposed creating a new federal agency excluded from public oversight, open-government advocates howled with criticism last fall. By late January, Burr’s subcommittee on bioterrorism responded with a revised bill that goes a long way toward addressing their concerns.

But it isn’t far enough, some advocates say.

As introduced in October, the Biodefense and Pandemic Vaccine and Drug Development Act (S. 1873) would exclude an entire federal agency from the Freedom of Information and Federal Advisory Committee acts. That would mean that Americans would know little, other than what the newly created agency would reveal, about the government’s work in helping develop vaccines and drugs against bioterrorism and pandemics.

No federal executive branch agency is excluded from FOIA, which governs open meetings and records in federal agencies. But nearly two-thirds of the roughly 7,000 executive branch advisory committee meetings that fell under FACA in 2004 were completely closed to the public because they are comprised wholly of federal government employees, according to OpenTheGovernment.org.

Burr’s bill, proposing the Biomedical Advanced Research and Development Agency, or BARDA, passed the Senate Health, Education, Labor and Pensions Committee the day after it was introduced.

In the original bill, even routine administrative information about the agency, such as travel expenses or office furniture costs, would have been blocked from the public. It would have allowed disclosure only when a “need to know” was demonstrated, and then only when both the director of BARDA and the secretary of its parent agency, Health and Human Services, agreed that opening records would not threaten national security. If the public had a problem with their decision, it would have had no recourse in the courts.

A group representing a range of advocacy organizations, including The Reporters Committee for Freedom of the Press, is concerned with the bill’s secrecy provisions but is split on how to fix them. Some advocates support using classification to protect sensitive documents, while others think using a narrowly tailored FOIA exemption is better. FOIA’s Exemption 3, a catch-all exemption that bars public release of information deemed exempt in another area of federal law, could be used.

A benefit to using the classification system is that clear, established criteria already exist for deciding what is confidential, secret or top secret, said Pete Weitzel, coordinator of the Coalition of Journalists for Open Government. Weitzel is working with Burr’s staff on revising the bill. However, classification tends to be cumbersome and costly and typically mandates 10 or more years before documents can be declassified.

Washington, D.C., lawyer Thomas Susman of Ropes & Gray, who also is contributing to the bill’s revision process, said he initially supported classification, but changed his mind in favor of Exemption 3 because it allows judicial review of decisions not to disclose.

“If they classify it, you don’t get it,” he said. “The courts just don’t second guess agencies on classification decisions as to when disclosure might be harmful to national security. The agencies just win.”

Subcommittee members have expressed support for using both means, Weitzel said. Most of the dozen advocacy organizations favor classification.

“There’s concern about creating a new statutory exemption [to FOIA] that, as some people say, you could drive a pharmaceutical truck through,” he said.

Using FOIA’s Exemption 3 creates the risk that government officials “could effectively interpret it to extend their authority to close records in areas not originally intended to be closed,” Weitzel said.

Rick Blum, head of OpenTheGovernment.org, agreed, saying information should be withheld “only in the most necessary instances.” There also should be a distinct line between those who do the agency’s work and those who decide whether it should be kept from the public, he said.

“Whichever system is used, we need adequate oversight and we need to separate the doers from the secret keepers,” he said. “We need much more independent oversight and a much narrower exception here.”

Blum said that while he thinks subcommittee members are working in good faith to create an agency that would protect Americans against bioterrorism and pandemic health threats, they see the issue in a fundamentally different way than do the advocacy groups.

“The disagreements are over how best to protect the public and the role of secrecy &#151 whether secrecy helps or hurts,” he said.

Weitzel and Blum said that particularly in the area of science, openness is essential to success.

“You really hurt the advancement of science and real progress if you are inhibiting outside researchers” from accessing scientific information, Blum said.

A January report from the National Research Council, though not specific to BARDA, echoed Blum’s sentiment and called for promoting the free and open exchange of research in the life sciences “to the maximum extent possible.”

“In general, restrictive regulations and the imposition of constraints on the flow of information are not likely to reduce the risks that advances in the life sciences will be utilized with malevolent intent in the future,” the report said. Such restrictions are more likely to weaken national security, it said.

The report swayed many advocates in favor of classification, Weitzel said.

Burr spokesman Doug Heye said the bill, which has no House counterpart, is not intended to keep any information private.

“The agency will be giving out information every day on what’s being done to make sure we have the drugs and vaccines we need,” he said, adding that he expects the bill to be presented soon to the entire Senate, where he predicts easy passage.