Today, the DC Circuit court reissued an opinion in Public Citizen v. OMB that rejected the agency’s use of exemptions 2 and 5 of the Freedom of Information Act (FOIA).  OMB had attempted to withhold information from Public Citizen that detailed which agencies submit materials to Congress without clearance by OMB.  This court case adds an important legal support to the FOIA practice of discretionary disclosure.

Exemption 2 of the FOIA allows agencies to withhold information concerning internal personnel rules and practices while exemption 5 applies to inter- and intra-agency materials that are pre-decisional and deliberative.  However, the DC Circuit found that the records have nothing to do with OMB’s internal practices.  Further, for exemption 5 to apply the records must be both pre-decisional and deliberative which do not apply in this instance.  Therefore, neither exemption can apply to these records in full.

This case is an important one in that it limits the way these specific FOIA exemptions can be used by agencies to withhold information from the public.  Government openness advocates have long argued that these exemptions are applied too broadly by agencies. 

Although the Obama administration has attempted to better define the applicable uses of these exemptions, advocates have not seen a decline in their actual assertions.  The Office of Information Policy at the Justice Department released a memorandum last May that instructed agencies to exercise greater discretion to release information under both of these exemptions if there would be no reasonably foreseeable harm from release.  Far too often, agencies will use exemption 5 to withhold records in their entirety when only part of the information in an entire document might actually fall under that exemption.  Further, agencies usually take vast liberties to apply exemption 2 broadly and withhold information that could inform the public in regard to activities of the government.  Hopefully this case will help push agencies to better comply with executive branch FOIA policy.

A February Government Accountability Office report released today chides the Food and Drug Administration for failing to ensure the safety of common food additives. By law, manufacturers may assign additives a "generally recognized as safe," or GRAS, designation, a process that the FDA neither monitors nor verifies in most cases, according to the GAO.

Companies are supposed to make GRAS determinations based on the latest and greatest scientific evidence. Later, if new information turns up or if citizen petitions are filed with the FDA, additives can potentially be stripped of their GRAS designation.

One would expect that the FDA would keep tabs on GRAS substances. One would be wrong. Perversely, companies are not required to tell the FDA they have made a GRAS determination. (Many do notify the FDA voluntarily.) This makes it kind of difficult for the FDA to ensure food safety, according to GAO:

Once a GRAS substance has entered the marketplace, FDA would find it difficult to identify that substance as the potential source of a food safety problem, especially if FDA is unaware that the substance has been determined to be GRAS. Food products may contain numerous ingredients, including GRAS substances, making it difficult, if not impossible, for public health authorities to attribute a food safety problem to a specific GRAS substance. [Emphasis added.]

The report has many other specific criticisms of the FDA. It seems as though there are two overarching problems. First, regardless of whether the agency is aware that a GRAS determination has been made, the FDA tends to sit back and wait for new information to come to it. Second, when risk information does find its way to the FDA, the agency is slow to respond.

The report also delves into the issue of nanomaterials – tiny devices and products constructed of materials 100,000 times smaller than the width of a human hair. Although the FDA acknowledges that much remains unknown about nanomaterials (FDA has said it is not even comfortable defining nanotechnology), and even though some fear nanomaterials may have adverse effects on public health and the environment, manufacturers may designate nanomaterials as GRAS food additives. “Nevertheless, the decision to notify FDA of a GRAS substance, even one that contains engineered nanomaterials, is still voluntary,” the report says.

The GRAS problem is typical of the U.S.’s shoot-first-ask-questions-later approach to regulating. Safety is presumed, and regulation can only occur after evidence to the contrary reaches a critical mass.

GAO concluded the report by recommending several ways the FDA can sharpen oversight of GRAS determinations, including mandatory notification. “FDA generally agreed with the report’s findings and recommendations,” GAO said.

Image by Flickr user PunkJr, used under a Creative Commons license.

More than 40 million Americans are no longer at risk from a poisonous cloud of gas released from a terrorist attack on water treatment plants thanks to process changes at the plants, according to data collected by the Environmental Protection Agency (EPA). The data, painstakingly compiled and analyzed by the Center for American Progress (CAP), reveal that 554 water treatment facilities across the country have converted to safer chemical processes since 1999. However, millions more remain at risk and the Senate is poised to take on this issue. 

The data analysis by CAP and the consultant, Paul Orum, shows that it is technically and economically  possible – and enormously effective – to convert dangerous processes to safer ones, thereby reducing or eliminating the risks to the workers and surrounding schools, homes, and communities.

Now, what about the other 2,600 water facilities that still put millions of citizens needlessly at risk from accidentally or intentionally released poison gas? Moreover, what about the more than 6,000 chemical plants that threaten millions more?

Many moons ago, Congress relied on facts, science, and other evidence to guide its thinking and make decisions. One repository for such information was the Office of Technology Assessment (OTA), an arm of Congress created in 1972 to enlighten lawmakers on new technological applications and emerging issues and, if appropriate, recommend ways to harness science and technology for the public good.

A new push to restore the OTA to its former glory is gaining momentum. The OTA has been defunct since 1995 when Newt Gingrich’s Congress successfully eliminated the office’s funding.

This morning, the House subcommittee in charge of Legislative Branch spending held a public hearing to discuss the FY 2011 budget, scheduled to begin Oct. 1, 2010. Restoring funding for the OTA was one of several issues on the docket.

Dr. Francesca Grifo, Senior Scientist with the Union of Concerned Scientists, argued that Congress, and by extension the public, needs the OTA:

Members of Congress certainly do not lack for input, but in many situations they do lack credible and nonpartisan information that is structured in a way they can easily use. OTA was uniquely structured to provide credible information in the following areas:

• Unnecessary expenditure of taxpayer money on unproven technologies or other policies that are scientifically indefensible
• Early identification and analysis of technological issues before they became national Crises
• Evaluation of Executive Branch science and technology initiatives to aid Congress in its oversight duties.

While the analysis produced by OTA did not always drive congressional decision making, it did set boundaries to the debate, rule out some scientifically incorrect arguments, and help to frame political decisions in technically defensible ways. 

By federal government standards, OTA doesn’t need a lot of money to get rolling. In FY 1995, its last full year of operation, OTA’s budget was $21 million. The office had a staff of 183.

“When OTA was operational, it more than earned its keep by identifying wasteful and ineffective programs and suggesting improvements to others,” Grifo said. For example:

A 1988 OTA study, “Healthy Children: Investing in the Future” pointed out the vulnerability of low birthweight infants to a variety of physical and mental disabilities. Its research concluded that expanding Medicaid eligibility to all pregnant women living in poverty would cost much less than the cost of $14,000 to $30,000 to treat the health problems of each low birthweight infants. That study helped change Medicaid eligibility rules by expanding access to prenatal care to millions of women in poverty. 

The Union of Concerned Scientists (UCS) is leading the charge to restore funding (go to www.ucsusa.org/ota for more). Dozens of leading public health, environmental, transparency, and good government advocacy organizations have signed onto a letter calling on Congress to restore funding. (Your organization can still sign on: Contact UCS.) A separate sign-on letter for the scientific community is also available.

We’ll have more as Congress begins to write the FY 2011 budget. Check back for opportunities to get involved.