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The OMB Watcher
Vol. 6, No. 24
November 29, 2005
A New Ultra-Secret Government Agency
Legislation is moving in the Senate to create a new government agency to
combat bioterrorism that will operate, unlike any other agency before it,
under blanket secrecy protection.
Sen. Richard Burr (R-NC) has introduced the Biodefense and Pandemic Vaccine
and Drug Development Act of 2005, S1873, that would create a new agency in
the Department of Health and Human Services (HHS) to research and develop
strategies to combat bioterrorism and natural diseases. While Congress has
created several agencies recently in response to homeland security concerns,
most notably the Department of Homeland Security, Burr proposes for the
first time ever to completely exempt this new agency from all open
government laws. The legislation has already passed out of the Committee on
Health, Education, Labor, and Pensions and is now before the full Senate.
The Act creates the Biomedical Advanced Research and Development Agency
(BARDA) to work on countering bioterrorism and natural diseases. Apparently
in an attempt to protect any and all sensitive information on U.S.
counter-bioterrorism efforts or vulnerabilities to biological threats, Burrs
has included in the legislation the first-ever blanket exemption from the
Freedom of Information Act (FOIA). The legislation states that, "Information
that relates to the activities, working groups, and advisory boards of the
BARDA shall not be subject to disclosure" under FOIA "unless the Secretary
[of HHS] or Director [of BARDA] determines that such disclosure would pose
no threat to national security."
Neither the CIA nor the Defense Department has such an exemption. Burr‚s
spokesperson argues that the exemption is necessary to protect national
security claiming that "there will be times where for national security
reasons certain information would have to be withheld." For instance, the
BARDA should not, according to the spokesperson, be required to publicly
disclose information pertaining to a deadly virus.
FOIA, however, already includes an exemption for national security
information, as well as eight other exemptions ranging from privacy issues
to confidential business information and law enforcement investigations. If
the public disclosure of information would threaten national security, then
the government may withhold the requested information. "The well-established
and time-tested FOIA provisions already address Burr's concerns," explains
Sean Moulton, OMB Watch senior policy analyst, "thereby making the blanket
exemption for BARDA unnecessary and unwise."
Congress established and strengthened FOIA over the years to create a
reasonable, consistent level of accountability among government agencies.
Under FOIA, when the public requests agency records, the agency is compelled
to collect and review the requested information. The only decision for the
agency is whether specific records can or can not be released under the law
based on the exemptions from disclosure written into the law. However, the
Burr legislation reverses the process: it does not require BARDA to collect
or review the requests for disclosure. Instead, the agency can automatically
reject requests. Still more troubling, the law prohibits any challenges of
determinations by the Director of BARDA or Secretary of HHS, stating that
the determination of the Director or Secretary with regards to the decision
to withhold information "shall not be subject to judicial review."
Mark Tapscott at the Heritage Foundation writes that "BARDA will essentially
be accountable to nobody and can operate without having to worry about
troublesome interference from courts or private citizens like you and me."
This move to restrict the reach of FOIA appears in stark contrast to the
recent Senate vote to strengthen open government. Sens. John Cornyn (R-TX)
and Patrick Leahy (D-VT) co-sponsored FOIA reform legislation, passed by the
Senate in June, that "will bring additional sunshine to the federal
legislative process, and was another step toward strengthening the Freedom
of Information Act."
The Biodefense and Pandemic Vaccine and Drug Development Act also exempts
BARDA from important parts of the Federal Advisory Committee Act, which
requires public disclosure of advice given to the executive branch by
advisory committees, task forces, boards and commissions.
Other provisions of the bill compound the troubling secrecy provisions. They
* Giving BARDA the authority to sign exclusive contracts with drug
manufacturers and forbidding the agency from purchasing generic versions of
these drugs or vaccines.
* Authorizing BARDA to issue grants and rebates for drug companies to
* Providing liability protection to drug manufacturers for drugs and
vaccines not approved by the Food and Drug Administration, by requiring the
secretary of HHS find that a drug company willfully caused injury.
The FOIA exemption in combination with these provisions would prevent the
public from knowing whether BARDA is effectively completing these duties.
Only information on agency actions could establish if the new agency is
protecting the public from bioterrorism and infectious disease or if it is
simply providing handouts to drug companies that creates no added security.
"It is essential that open government safeguards remain in place for all
agencies," Moulton continues. "It is extremely important to ensure that the
nation is protected against pandemics and bioterrorist attacks, but such
efforts must not be excluded from open government. By providing the
mechanisms for government accountability, these safeguards ensure that the
government meets its responsibility to protect the public. In the end, an
accountable government is a stronger government which acts to effectively
meet all threats, including pandemics and bioterrorism."
Burr is still in the process of revising the Biodefense and Pandemic Vaccine
and Drug Development Act, and, with the Senate's incredibly tight schedule,
the timing of the bill's introduction on the floor remains uncertain. In the
meantime, supporters are rumored to be seeking out a Democratic cosponsor to
give it momentum.
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