First Freedom of Info ruling since 9/11 favors AV group
From ANIMAL PEOPLE, November 2002:
WASHINGTON D.C.– U.S. District Court Judge Ricardo M. Urbina
ruled in Washington D.C. on September 3 that the U.S. Food and Drug
Administration failed to prove any legitimate need to withhold
approximately 27,000 records regarding xenotransplantation studies
from Campaign for Respon-sible Transplantation founder Alix Fano.
The ruling, on a Freedom of Information Act request Fano
filed in March 2000, did not end the three-year battle over whether
or not the records should be disclosed. Urbina gave the FDA until
Nov-ember 10 to prepare arguments distinguishing between categories
of records withheld as “trade secrets” and withheld on other claims.
In addition, U.S. District Court verdicts may be appealed to
the U.S. Circuit Court of Appeals, and then to the Supreme Court.
The case could be many years from ended. The Urbina ruling was
significant, however, as the first major test of federal efforts to
withhold information about animal testing since September 11, 2001.
Public vs. private
For almost a year biomedical researchers openly hoped that
heightened public concern about terrorism might give win greater
judicial sympathy for efforts to conceal particulars about animal
experiments from antivivisectionists.
The weight of judicial opinion, however, has consistently
held that disclosure of information about tax-funded projects is in
the public interest, and that facts may not be withheld merely to
shield researchers from political pressure. Arguments that
disclosure might expose researchers to terrorism have rarely been
accepted in the absence of specific information linking the would-be
recipients of the information to either individuals or groups
associated with violent acts.
Rulings mostly issued by lower courts in the western states
in cases pertaining to grazing, endangered species, and predator
control have given more leeway to withhold information from activist
groups to the U.S. Forest Service, Bureau of Land Management, and
USDA Wildlife Services.
Although the Farm Bureau Federation and state affiliates have
argued in supporting briefs that preventing terrorism is among the
reasons why information should be withheld, the pivotal argument has
usually been that the ranchers involved have been private
individuals, and their ranches are private property, even though
they may exist in large part on leased public land and make extensive
use of subsidized government services to remain in business.
PCRM vs. EPA
One day after the Urbina ruling favoring Fano and the
Campaign for Responsible Transplantation, the Physicians Committee
for Responsible Medicine announced that it intends to sue the
Environ-mental Protection Agency for withholding details about the
High Production Volume Chemical Testing Program, which PCRM has
tried to limit or halt since 1999.
PCRM has already won a string of victories in disclosure
cases. In September 2000, for instance, U.S. District Judge James
Robertson ruled on behalf of PCRM that the USDA had to disclose that
U.S. Dietary Guidelines Advisory Committee chair Cuberto Garza had
received more than $10,000 for services provided to
Nestle-Switzerland, a maker of dairy products.
The biggest recent PCRM disclosure victory, however, was
the June 2002 suspension of a $1.7 million five-year study of the
effects of methadrine on 108 cats who were given feline AIDS (FIV).
The experimenter, Michael Podell, DVM, resigned from his
post as an associate professor of veterinary clinical sciences and
neurosciences after an intensive campaign begun in August 2000 by
PCRM, PETA, and the Ohio activist group Protect Our Earth’s
Treasures. It is as yet unclear whether anyone else will take over
the work, which was apparently less than 40% completed.
Although the pressure against Podell came from multiple
directions, PCRM founder Neal Barnard indicated in personal
correspondence leaked to ANIMAL PEOPLE that he felt that persuing the
disclosure issue in a lawsuit against the National Institutes of
Health was pivotal.
“Ohio State University is considering using new
anti-terrorism laws to restrict the release of research information,”
Columbus Dispatch science reporter David Lore wrote on June 26.
Most legislation adopted after September 11, 2001 has not
yet been tested in court, but would be subject to the same
constitutional principles as other disclosure cases.