Last month, Sen. Richard Burr (R-NC) introduced a bill which would create the first -- and only -- government agency granted immunity from the Freedom of Information Act (FOIA). The new bill, S. 1873, would create the Biomedical Advanced Research and Development Agency (BARDA). In addition to the FOI exemption, minutes, memos and such "shall not be subject to judicial review" unless the Secretary decides there is no national security threat.

Ironically, in June this same Senate passed a bi-partisan measure (S. 1181) by unanimous consent that would "bring increased sunshine to the federal legislative process," according to co-sponsor Sen. Pat Leahy (D-VT). It would require bills with FOIA exemptions to state them "explicitly" in the bill text; the bill languishes in the House Committee on Government Reform.

The National Vaccine Information Center calls BARDA "a drug company stockholder's dream and a consumer's worst nightmare."

The long bill title summarizes BARDA's purpose: "A bill to prepare and strengthen the biodefenses of the United States against deliberate, accidental, and natural outbreaks of illness, and for other purposes." A "natural" outbreak of illness would include a pandemic. The bill is a boon for pharmaceutical companies, because BARDA would manage the federal "government's anti-bioterrorism research and encourage private companies to bring more drugs and vaccines to market quicker."

With a FOIA exemption, the agency -- and the companies receiving tax money -- would be exempt from judicial or public oversight. The bill also exempts the agency from "rules designed to ensure efficiency and protect against waste and fraud," suggesting there would be little Congressional oversight as well. It doesn't stop there: the companies that would be funded would have a blanket exemption from liability lawsuits.

Bill Sponsors
So who are these Senators, who wish to hand out money with little or no strings attached? In addition to Burr, chair of the Senate Bioterrorism and Public Health Preparedness Subcommittee, there are five co-sponsors of the 89-page bill: Sen. Alexander (R-TN), Sen. Dole (R-NC), Sen. Enzi (R-WY), Sen. Frist (R-TN) and Sen. Gregg (R-NH). As a group, they accepted almost $3 million in contributions from the health sector in the last election cycle; more than one-third of this went to Burr.

Earlier this month, the Seattle Times called on Congress to "scrutinize" the bill, nothing that not even Homeland Security or the CIA have the "luxury" of FOI exemption. The Roanoke (VA) Times calls, instead, for "a vaccine against official secrecy," noting that bill sponsors "apparently could not resist the penchant too prevalent among Washington leaders today for secrecy and capitulation to corporate donors at the expense of civil protections."

FOIA
FOIA was a hard-fought battle to shine the light of day on backroom government practices; it spawned similar legislation in all 50 states. It, along with other measures like the Federal Advisory Committee Act (FACA), is an "open government" measure designed to provide citizen and media access to government documents and actions.

President Johnson signed the FOIA on 4 July 1966, one day before a pocket-veto would have killed the bill. In 1996, the Society of Professional Journalists wrote:

[T]he FOIA has compelled federal agencies to yield millions of documents relating to government operations and performance. Every week, a news organization, scholar or public-interest group somewhere reports information of significance to public health or safety or good governance — based on material gleaned from FOIA requests.

Still, the FOIA has been something of a regulatory pariah over its 30-year history. Congressional oversight and agency reporting have been superficial and episodic at best. Funding has been inadequate. Compliance has ranged from enthusiastic implementation to sullen resistance to active interference.

The first national Sunshine Week (your right to know) was launched in 2005.

Bioterrorism and the use of Fear in Public Health, Richards & Obrien, LSU Law Center; Frist Urges Germ Spies (Atlanta Journal-Constitution) ; BARDA bill text (pdf)

Blogs following this story: American Liberalism, Armchair Generalist, Dr. Tom's Place, Obsidian Wings, Reticula, Weapon of Mass Distraction

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