Dec. 5, 2005 – A Senate bill purportedly designed to deal with potential pandemics, biological attacks and accidents would ? in addition to possibly creating a windfall of new profits for drug companies while freeing them from large portions of government oversight ? form a new agency within the Department of Health and Human Services (HHS) that is wholly immune to reporting requirements under the Freedom of Information Act.
Open-government groups are stepping up opposition to the bill, saying that the extraordinary government secrecy included in it is unnecessary and may undermine public health by protecting the government from public scrutiny and accountability.
The measure in question was introduced in October by Senator Richard Burr (R-North Carolina) as part of the federal government?s proposed response to a possible serious influenza outbreak. The Biodefense and Pandemic Vaccine and Drug Development Act of 2005 calls for Health and Human Services to form the Biomedical Advanced Research and Development Agency (BARDA), tasked with a broad mandate to research and develop pharmaceuticals and programs to deal with potential disease outbreaks and bioterror attacks.
Open-government advocates and others, including the conservative think tank Heritage Foundation, charge that a provision shielding BARDA from Freedom of Information Act (FOIA) requests would make the agency the first-ever federal body entirely free from public oversight. In addition to the blanket FOIA exemption, the Agency, which would operate on billions in taxpayer money, would also be exempt from federal purchasing regulations and oversight by the Federal Advisory Committee.
Both regulatory functions are designed to ensure public money is spent correctly and that crippling conflicts of interest do not arise within federal agencies and departments.
According to the text of the bill (S. 1873), BARDA information "shall not be subject to [FOIA] disclosure, 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."
In a statement released at the end of November, Sean Moulton, an analyst with the progressive government-oversight group OMB Watch, said: "It is essential that open-government safeguards remain in place for all agencies. It is extremely important to ensure that the nation is protected against pandemics and bioterrorist attacks, but such efforts must not be excluded from open government. By providing the mechanisms for government accountability, these safeguards ensure that the government meets its responsibility to protect the public."
Government officials and others who support the BARDA proposal maintain that national security needs may outweigh the public?s right to know as the agency works with private companies and government offices to address biosecurity.
The exemption "is not as scary as people make it out to be," Center for Strategic and International Studies senior fellow Gerald Epstein told the San Jose Mercury News. According to Epstein, BARDA would have to incorporate an expensive and burdensome system for categorizing and releasing sensitive information were the provision not included.
As The NewStandard reported last month, the Biodefense and Pandemic Vaccine and Drug Development Act has also spurred opposition from groups concerned over the profits drug companies stand to make under new patent rights and similar measures contained in the bill. In addition, the act contains language protecting drug manufacturers from lawsuits arising from vaccines developed through programs initiated under the act.
"In the end, an accountable government is a stronger government which acts to effectively meet all threats, including pandemics and bioterrorism," OMB Watch?s Moulton said.
