Consumer organization Public Citizen has filed a citizen petition with the Food and Drug Administration (FDA) challenging its policy of instructing staff, when responding to requests under the Freedom of Information Act (FOIA), to not consider “minor deletions,” which can be up to 20 percent of the responsive documents, as a partial FOIA denial that would trigger a requester’s right to an administrative appeal. Public Citizen specifically requests that FDA revoke 21 C.F.R. § 20.49(d) which states, “Minor deletions of nondisclosable data and information from disclosable records shall not be deemed a denial of a request for records.” The organization also asks the agency to revoke parts of its staff manuals.
According to the petition, more than 20 years ago, the General Accounting Office (now the Government Accountability Office) (GAO) “urged FDA to rescind its deletions regulation and a similar policy on ‘minor deletions’” because it violates FOIA. Attached to the petition, the 1991 GAO report notes that this minor deletion policy precludes “immediate appeals of minor deletions of information” and “creates a procedure for requesters that is not authorized by FOIA. If the same information had been denied, as the law contemplates, the requester would have been permitted to appeal immediately; when the information is instead the subject of minor deletions, the requester must make a second request for the deleted information, and may not appeal until that second request is denied.”
Public Citizen contends that the policy “creates an incentive for FDA staff to over-redact documents” and has resulted in some documents produced under FOIA to the organization with entire pages deleted. The petition also argues that FDA’s policy is not needed in the interest of serving FOIA requesters promptly. GAO questioned that reasoning, but stated, “our objection to the minor-deletions policy is based on its inconsistency with the requirements of FOIA, not on whether it benefits the requestor.”