Contact:
Charles N. Davis, Freedom of Information Committee, (573) 882-5736 or daviscn@missouri.edu

THE ISSUE:
A bill moving quickly in the Senate would create a new Biomedical Advanced Research and Development Agency (BARDA) that would become the first-ever agency categorically exempt from disclosure under the Freedom of Information Act (FOIA).

The FOIA exemptions have always placed specific categories of information beyond the reach of the act, but Senate Bill 1873 seeks to create cradle-to-grave secrecy over an entire agency – a level of secrecy unheard of in the United States.

“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 [i.e. the FOIA], unless the Secretary or Director determines that such disclosure would pose no threat to national security,” the bill states.

The fact that the FOIA already includes an exemption for properly classified national security information is a fact lost on the bill’s authors.

This means that, in the absence of a ruling by the head of the agency that the release of information would pose no threat to national security, every document created by BARDA -- every working group (the bill also categorically exempts BARDA from the Federal Advisory Committee Act), all of its activities, its relationships with industry, its advisory boards -- will not be subject to disclosure through FOIA. S. 1873 appropriates $1 billion in 2006 alone from Project Bioshield to fund BARDA – and no one, save for the agency, will provide accountability.

Then, in a sweeping departure from constitutional norms, the bill seeks to forestall any judicial scrutiny whatsoever.

“Such a determination shall not be subject to judicial review,” the bill adds.

While S 1873 is intended to protect public health and safety, it guts the public safety benefit that flows from citizen participation in government. The key to public health is the public, which cannot avoid transmission of epidemic or pandemic disease unless it has knowledge of the disease, and understanding of how to treat it.

Members of the public cannot identify and stop bioterrorists unless they are made aware of the bioterrorists’ potential existence. Major epidemics throughout history have shown that government secrecy does more to spread disease than prevent it. One lesson of the Great Influenza of 1918 – the worst flu epidemic of all time – was that its rapid spread was due, in part, to government censorship of news coverage regarding this disease.

The bill, co-sponsored by Senator Richard Burr (R-NC) and Majority Leader Bill Frist, among others, was introduced on October 17 and promptly reported out of Committee on October 24. It now awaits action by the full Senate.

See S. 1873, a bill “to prepare and strengthen the biodefenses of the United States against deliberate, accidental, and natural outbreaks of illness”: http://www.fas.org/irp/congress/2005_cr/s1873.html

The new agency would help spur private industry to develop and manufacture medical countermeasures for bioterrorism agents and natural outbreaks such as a possible avian flu pandemic. But the bill also makes oversight and accountability of much of America’s biodefense efforts nearly impossible.

“Suspicions on the part of nations about the intent of each other’s biodefense activities can lead to an arms race in biological weapons,” wrote Alan Pearson, director of the Center for Arms Control and Nonproliferation’s Program on Biological and Chemical Weapons, and Lynn Klotz, a senior fellow at the center, in a joint statement.

See: http://www.armscontrolcenter.org/archives/002155.php

What you can do:

* Write news stories informing your local community about the lack of accountability in the BARDA bill, which would eliminate all public scrutiny of a critical new government agency. Let readers/viewers/listeners know how they can object to the changes (see below).

* Write key senators involved in BARDA (see list)

Senate Health & Education Committee

The Honorable Lamar Alexander
302 Hart Senate Office Building
Washington, DC 20510-4204

The Honorable Jeff Bingaman
703 Hart Senate Office Building
Washington, DC 20510-3102

The Honorable Richard M. Burr
217 Russell Senate Office Building
Washington, DC 20510-3306

The Honorable Hillary Rodham Clinton
476 Russell Senate Office Building
Washington, DC 20510-3204

The Honorable Mike DeWine
140 Russell Senate Office Building
Washington, DC 20510-3503

The Honorable Christopher J. Dodd
448 Russell Senate Office Building
Washington, DC 20510-0702

The Honorable John Ensign
364 Russell Senate Office Building
Washington, DC 20510-2805,

The Honorable Michael B. Enzi
379A Russell Senate Office Building
Washington, DC 20510-5004,

The Honorable Bill Frist
509 Hart Senate Office Building
Washington, DC 20510-4205

The Honorable Judd Gregg
393 Russell Senate Office Building
Washington, DC 20510-2904

The Honorable Tom Harkin
731 Hart Senate Office Building
Washington, DC 20510-1502

The Honorable Orrin G. Hatch
104 Hart Senate Office Building
Washington, DC 20510-4402

The Honorable Johnny Isakson
120 Russell Senate Office Building
Washington, DC 20510-1006

The Honorable James M. Jeffords
413 Dirksen Senate Office Building
Washington, DC 20510-4503

The Honorable Edward M. Kennedy
317 Russell Senate Office Building
Washington, DC 20510-2101

The Honorable Barbara A. Mikulski
503 Hart Senate Office Building
Washington, DC 20510-2003

The Honorable Patty Murray
173 Russell Senate Office Building
Washington, DC 20510-4704

The Honorable Jack Reed
728 Hart Senate Office Building
Washington, DC 20510-3903

The Honorable Pat Roberts
109 Hart Senate Office Building
Washington, DC 20510-1605

The Honorable Jeff Sessions
335 Russell Senate Office Building
Washington, DC 20510-0104

Plus:

The Honorable John Cornyn
517 Hart Senate Office Building
Washington,DC20510-4302

The Honorable Charles E. Grassley
135 Hart Senate Office Building
Washington,DC20510-1501

The Honorable Patrick J. Leahy
433 Russell Senate Office Building
Washington,DC 20510-4502

The Honorable Susan Collins
461 Dirksen Senate Office Building
Washington, DC 20510-1904

The Honorable Joseph I. Lieberman
706 Hart Senate Office Building
Washington, DC 20510-0703

The Honorable Arlen Specter
711 Hart Senate Office Building
Washington,DC20510-3802

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