Cloaking BARDA

There's a good AP story out today on the proposal to exempt an entire new government agency from the Freedom of Information Act (FOIA) and the Federal Advisory Committee Act (FACA). We were among the first to call foul on anti-accountability aspects of the legislation (S. 1873) that creates the Biomedical Advanced Research and Development Agency, or BARDA.

A blanket FOIA exemption for an entire is unneeded, goes too far and is bad public policy that could backfire and lead to waste, fraud, abuse and slower scientific and medical progress from a lack of accountability and flow of information. Furthermore, no other government agency has such an exemption, not even the CIA or other intelligence agencies.

Though some supporters of the FOIA exemption say the agency will still respond to FOIAs that don't threaten national security--there is already an exemption for that information. Likewise, it is a false argument when supporters say the agency exemption is necessary because proprietary information could be released through FOIA since there is already an proprietary information exemption to FOIA. In sum, FOIA already has exemptions for information that shouldn't be released.

The two biggest problems with the BARDA legislation, sometimes refer to as Bioshield 2, are that, one, the language creates the impression that there will be a presumption of non-disclosure for things that could even be disclosed and, secondly, that there is no judicial review. Mark Tapscott of the Heritage Foundation eloquently addresses the lack of judicial review problem in a recent op-ed.

The section of the bill that addresses FOIA and FACA is titled "Inapplicability of Certain Acts." The actual language on FOIA is as follows:

(1) FACA- The Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to the duties, activities, working groups, and advisory boards of the BARDA.

(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, 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.

Words and phrases such as "inapplicability" and "shall not be subject to disclosure" give the impression that transparency will be the exception, rather than the rule. This could easily be changed by either removing this section entirely (remember FOIA already contains exemptions for information that should be withheld) or by inverting some of the language ("inapplicability" to "applicability" and "shall not be" to "shall be").

Cloaking an entire agency in secrecy sets a dangerous precedent which could lead to ever greater secrecy across the government.