On Monday, I published a post about CFSAC violating the Federal Advisory Committee Act (“FACA”) by failing to make the the working group’s draft P2P comments available to the public prior to, or at the time of, the January 2015 CFSAC meeting.
Under section 10(b) of FACA, “the records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by each advisory committee shall be available for public inspection and copying at a single location in the offices of the advisory committee or the agency to which the advisory committee reports until the advisory committee ceases to exist.” These documents must be made available no later than at the time of the meeting. When HHS had not made the draft comments available to the public for the January meeting, I requested that document, under FACA, after the meeting in a letter to Barbara James, Designated Federal Officer (“DFO”) of CFSAC at the time. I received it in March along with other documents, which is posted and analyzed in my Monday post.
In an apparent attempt to counter my FACA-violation charge, the current DFO, Dr. Nancy Lee, addressed the issue at Tuesday’s meeting:
“We are not required to send these [documents prepared for the meeting] out in advance of the meeting [other than to committee members] because they are pre-decisional. … [W]e are not required to post them on the website because they are pre-decisional.”
Dr. Lee’s excuses for HHS’s failure to comply with FACA fall flat because she is plain wrong regarding the requirements of FACA.
First of all, she seems to combine two arguments. It appears she is saying that HHS is not required to
- email the relevant documents to the public or post them on the CFSAC website in advance of the meeting nor
- disclose them at all because they are pre-decisional.
I and numerous other advocates wrote to Ms. James ahead of the meeting in January, saying that “the public should see” the document, which is exactly what FACA requires. I did not ask for the document to be emailed to me nor for it to be posted on the CFSAC website. I also never claimed that the FACA violation was the result of the failure to do so. Yet with her above statements, Dr. Lee falsely insinuated that I did when, in fact, I pointed out a FACA violation resulting from not making the document available to the public at all as required by FACA.
Regarding her second argument, Dr. Lee seems to be confusing the Freedom of Information Act (“FOIA”) and FACA. Under FOIA exemption 5, government agencies may withhold documents that are the product of the “deliberative process in governmental decision-making,” also referred to as “pre-decisional,” the term Dr. Lee used. The relevant FACA-disclosure requirements, however, are as follows:
“… FACA requires disclosure of written advisory committee documents, including predecisional materials, such as drafts, working papers and studies. The disclosure exemption available to agencies under exemption 5 of FOIA for predecisional documents and other privileged materials is narrowly limited in the context of FACA to privileged ‘inter-agency or intra-agency’ documents prepared by an agency and transmitted to an advisory committee.” [emphasis added] (Memorandum Opinion for the Assistant Attorney General Office of Legal Policy dated April 29, 1988)
In other words,
“FOIA Exemption 5 cannot be used to withhold documents reflecting an advisory committee’s internal deliberations.” (Memorandum for Committee Management Officers from James L. Dean, Director, Committee Management Secretariat, dated March 14, 2000)
The rationale is simple:
“Timely access to advisory committee records is an important element of the public access requirements of the Act. Section 10(b) of the Act provides for the contemporaneous availability of advisory committee records that, when taken in conjunction with the ability to attend committee meetings, provide a meaningful opportunity to comprehend fully the work undertaken by the advisory committee.” (see 41 C.F.R. §102-3.170)
CFSAC, as a FACA committee, is not an agency. Therefore, there is no FACA exemption for pre-decisional materials prepared within CFSAC, a sub-committee or a working group for consideration at a CFSAC meeting. Such an exemption would apply only if the materials were prepared by HHS, one of its component agencies or another federal agency.
Lastly, with respect to the working group draft documents that were discussed during the August 18-19, 2015 meeting, Dr. Lee mentioned they were “in the back of the room” and “available for anybody here for review.”
That would not appear to be FACA-compliant either because under Section 10(b) of FACA, the documents “shall be available for public inspection and copying ….” In order to gain access to a CFSAC meeting, one must be pre-registered for the meeting in order to undergo a security check in advance. Without being registered, one is not able to enter the Hubert H. Humphrey Building where the meetings take place. Therefore, “available for anybody here in the room” does not constitute being “available for public inspection” and “available for review” does not satisfy the requirement that it be “available for copying.”
In my last post, I called for a firm commitment from HHS to follow federal laws, such as FACA, going forward. Instead, Dr. Lee misinformed the committee and the public about the legal requirements under the statute, implying that no FACA violation by HHS had occurred. HHS continues to act as though the agency is above the law and it appears that HHS has no intention to be compliant in the future.