NLPC has intensified “FDA Watch,” a project to expose favoritism and cronyism at the U.S. Food and Drug Administration (FDA), headed by its controversial Commissioner, David Kessler. Appointed by President Bush, Kessler was reappointed by Clinton under a set of questionable circumstances.
NLPC takes FDA to Court
Over the past ten months, FDA has stonewalled NLPC’s requests for documents
that are supposed to be available to the public.
In doing so, FDA has repeatedly violated the federal Freedom of Information Act (FOIA) and the agency’s very own FOIA regulations.
To counter FDA’s obstructionist tactics, NLPC filed seven lawsuits under FOIA with the U.S. District Court for the District of Columbia on December 29, 1995 and January 2, 1996. The suits deal with 41 individual FOIA requests that NLPC submitted to FDA between March and October of 1995.
Repeating a practice for which the White house itself is becoming notorious, FDA is simply refusing to provide documents to which NLPC is legally entitled.
For example, under FOIA an agency has ten working days to respond to a FOIA request or inform NLPC more time is needed. However, FDA has seldom met these deadlines. In fact, some of the FOIA requests have gone more than 250 days with no response from FDA other than an acknowledgement that the request was received.
In these case, NLPC has been forced to file suit to obtain the documents. NLPC is demanding that FDA pay its legal bills in these cases. Serving as legal counsel for NLPC is Jim Moody, one of the nation’s leading FOIA experts.
NLPC Project Director Michael J. Nelson commented, “It’s crazy, yet it is a suspicious pattern. FDA does not even attempt to adhere to its legal obligations under FOIA. If FDA is not going to pay attention to federal laws and its own regulations, why are the laws and regulations there?”
Congress’ Correspondence Withheld
The suits seek to pry loose correspondence between Kessler and Members
of Congress who may have played a role in getting President Clinton to
retain a Bush appointee. Rumors of a deal have circulated for months in
Washington.
NLPC filed FOIA requests for Dr. Kessler’s communications with liberals such as Rep. John Dingell (D-Mich.), Rep. Richard Durbin (D-Ill.), the late Rep. Mike Synar (D-Okla.), former Rep. and now Senator Ron Wyden (D-Ore.), and Henry Waxman (D-Cal.).
NLPC wants to know what consideration, if any, members of Congress were promised in return for support of Kessler. NLPC filed these FOIA requests on March 3, 1995, but so far the documents have been withheld.
Federal regulations state, “All correspondence to and from members of the public, Members of Congress, organization or company officials or other persons...is available for public disclosure.”
With such a clear mandate for disclosure of such records, the question must be raised whether FDA has something to hide.
Kessler’s Appointment Book Withheld
On March 10, 1995, NLPC submitted a FOIA request Kessler’s daily schedule
during the period surrounding his reappointment.
In early July 1995, NLPC received one version of Dr. Kessler schedule. This version, called the “Public Calendar,” did not completely fulfill the FOIA request.
NLPC obtained, under FOIA, copies of Kessler’s expense reimbursement requests. One of these reimbursement requests from October 1992 showed that Kessler was reimbursed $9.92 of taxpayer dollars for an “Appointment Book.”
In one of NLPC’s lawsuits, NLPC argues that disclosure of the “Appointment
Book” is in the public interest. Because Kessler is a public official and
used taxpayer money for the purchase of the “Appointment Book”, the public
has a right to the record in order to ensure Dr. Kessler is performing
his job openly, accountably, and ethically.
Since December 1995, Michael Nelson has filed an additional 295 FOIA
requests, bringing the total to 645 FOIA requests.
The highly respected industry publication, Dickenson’s FDA Review, reported that, “Sources inside the agency [report] that senior officials simply think the requests are too burdensome and not worth the trouble of a response.”
Amazingly, Kessler’s liberal allies filed thousands of FOIA requests during the Reagan and Bush administrations, and reacted with indignation when they were not immediately fulfilled.
Open government is essential to the health of the nation’s democratic institutions. Open-government laws must also be enforced consistently, without regard to which party holds power. The NLPC mission is to hold all government officials to same standard. NLPC will continue the fight to hold Kessler and FDA accountable to the nation’s laws, which they apparently believe they can disregard at will.
EW