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Bill Would Create Agency Exempt from Freedom of Information Act

Biodefense agency could operate in secrecy

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Dateline: November 2005

A bill now before the Senate would create a new executive branch agency that would become the first-ever government agency granted total immunity from disclosure of information under the Freedom of Information Act (FOIA).

The bill S. 1873, the Biodefense and Pandemic Vaccine and Drug Development Act of 2005, would create a new Biomedical Advanced Research and Development Agency (BARDA). Under the bill cosponsored by Sen. Richard Burr (R-NC) and Senate Majority Leader Bill Frist (R-TENN), BARDA would be assigned to assist and encourage private industry in developing medical countermeasures for bioterrorism agents and natural outbreaks such as a possible avian flu pandemic.

Even more unique than the bills’ stated purpose, “to prepare and strengthen the biodefenses of the United States against deliberate, accidental, and natural outbreaks of illness,” is S. 1873’s clause granting BARDA a total categorical exemption from the requirements of FOIA:

“(2) FOIA - Information that relates to the activities, working groups, and advisory boards of the BARDA shall not be subject to disclosure under section 552 of title 5, United States Code [Freedom of Information Act], unless the Secretary or Director determines that such disclosure would pose no threat to national security. Such a determination shall not be subject to judicial review,” the bill states.

While FOIA already exempts certain categories of information from disclosure, like properly classified information that could compromise national security, S. 1873 goes well above-and-beyond those exemptions by stating that a decision by BARDA to withhold information could not even be overturned by the courts.

Unless the director of BARDA determines that the release of information would pose no threat to national security, all documents created and activities undertaken by the agency and its advisory boards would not be subject to disclosure under FOIA.

S. 1873 appropriates an expenditure of $1 billion in 2006 to fund BARDA, the accounting for which could also be shielded from FOIA disclosure.

The bill was introduced on Oct. 17, was approved by the Senate Committee on Health, Education, Labor, and Pensions on Oct. 24 and is now awaiting consideration before the full Senate.

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