The Four Letter Word of FOIA

I just love (sarcasm) when I (or a company I am working with) is told by a regulator to FOIA something that should be readily shared- in some cases, because it is their own information.  

The premise behind the Freedom of Information Act is sound: have a process to make available information on an as-requested basis, subject to appropriate safeguards, without having to actively flood the space with “stuff”. But in some cases, it feels like FOIA is used to kick the can down the road and erect unnecessary obstacles to prevent access to information. It’s a knee jerk response when someone doesn’t want to share. In the examples below, which span several years, it would have been really easy for the agencies to be facilitators instead of roadblocks. 

One of my most memorable “Well, you can FOIA it” responses was several years ago, when Produce Safety Rule inspectors had a special question set to ask of onion growers. This was following the first large outbreaks associated with dry bulb onions, and the fact that inspectors would ask about onion-specific practices seemed entirely reasonable. Because the trade associations had worked with this industry and had a sense of the questions we would ask if we were in their shoes, we requested to see the list of questions. Nope. We were told to FOIA it. And within an hour or two we got a copy from friends at the state level. So FOIA did not prevent us from seeing the questions, it just ticked us off.

Some more recent and perplexing directions to FOIA relate to redacted Establishment Inspection Reports. These reports are provided to facilities following their inspection. Twice within a couple of months clients received their EIRs with sections redacted. One appeared to be a sentence or two; the other was more extensively redacted. But both were reports about their own inspections! Both EIRs contained boilerplate language stating that a FOIA request would need to be submitted for more details. So I worked with each firm to craft a FOIA request. 

For the one with just a sentence or two blacked out, the short version of a long story is that we eventually saw that the hidden lines related to the inspector acknowledging not having enough time to review some things. This had to be redacted? We had to FOIA to learn this? Is this an issue with inspectors not being well trained on how to write a report? 

For the other company, FDA realized that nothing should have been redacted; the information pertained to the name of another firm in the supply chain—except that there is shared ownership leading essentially to a vertically integrated company.  

But the most concerning need to FOIA (the one that prompted me to write this) occurred quite recently. A firm was told by a state regulator that their product tested positive for a pathogen, as detected by a different state’s lab. The company would only be able to get the lab report by submitting a FOIA request to the state that did the analysis. We always recommend that a firm see the actual lab report (because we’ve found errors) and not just go on an unsubstantiated claim. That the company would need to FOIA the lab report- delaying the timely issuance of a recall - shows a complete lack of urgency and/or confusion and lack of coordination between state regulators. Worse, I shared this story with a colleague who told me she had had the same experience with a different company, working with a different state. It is outrageous that a firm is asked to recall a product, but needs to FOIA the evidence against them. 

If I try to give the benefit of the doubt, perhaps these experiences can be attributed to new staff at regulatory agencies not understanding process. With the changes in staffing and mass exodus of tribal knowledge and experience, these situations may occur with greater frequency. Fortunately, there were no illnesses associated with the events described. I sure hope that in an outbreak situation, information that is directly related to the firm is readily shared with them without them needing to submit a FOIA request. For all the talk of “transparency” it’s unacceptable that regulators withhold information directly related to the firm, or that can help advance food safety more broadly.