Public Citizen Calls for FDA to Change FOIA Response Policy
Consumer organization Public Citizen has filed a citizen petition with the
Food and Drug Administration (FDA) challenging its policy of instructing staff,
when responding to requests under the Freedom of Information Act (FOIA), to
not consider “minor deletions,” which can be up to 20 percent of the responsive
documents, as a partial FOIA denial that would trigger a requester’s right
to an administrative appeal. Public Citizen specifically requests that FDA
revoke 21 C.F.R. § 20.49(d) which states, “Minor deletions of nondisclosable
data and information from disclosable records shall not be deemed a denial of
a request for records.” The organization also asks the agency to revoke parts of
its staff manuals.
According to the petition, more than 20 years ago, the General Accounting
Office (now the Government Accountability Office) (GAO) “urged FDA to
rescind its deletions regulation and a similar policy on ‘minor deletions’”
because it violates FOIA. Attached to the petition, the 1991 GAO report
notes that this minor deletion policy precludes “immediate appeals of minor
deletions of information” and “creates a procedure for requesters that is not
authorized by FOIA. If the same information had been denied, as the law
contemplates, the requester would have been permitted to appeal immediately; when the information is instead the subject of minor deletions,
the requester must make a second request for the deleted information, and
may not appeal until that second request is denied.”
Public Citizen contends that the policy “creates an incentive for FDA staff
to over-redact documents” and has resulted in some documents produced
under FOIA to the organization with entire pages deleted. The petition
also argues that FDA’s policy is not needed in the interest of serving FOIA
requesters promptly. GAO questioned that reasoning, but stated, “our objection
to the minor-deletions policy is based on its inconsistency with the
requirements of FOIA, not on whether it benefits the requestor.”
