TCR to challenge FDA’s unlawful blackout of canine DCM records
With continued thanks to attorney David Schulz at Ballard Spahr, LLP and to Yale Law School’s Media Freedom and Information Access Clinic (MFIA): TCR will file administrative appeals early next week to challenge the FDA’s denials for expedited processing of two FOIA requests filed in January 2023. Our administrative appeals will show that both requests meet the criteria for expedited processing under the FOIA.
FOIA Request for agency records January 9, 2023
Dear Ms. Kotler:
I write to request a copy of each report received by the FDA since May 1, 2019 in which a dog was diagnosed with dilated cardiomyopathy or DCM by a veterinarian, including but not limited to by a veterinary cardiologist. Or, in the alternative, provide a spreadsheet, summary, or any similar document that contains the key information collected from those reports that includes, at a minimum, name of the dog breed, dog’s age, brand name and type of the food product. This could be a chart such as provided in earlier FDA reports, for example:
Expedited processing requested
The Canine Review is working with The Washington Post on a joint reporting project in light of significant public interest in the material requested and ongoing controversy surrounding the safety of certain dog foods. Given the time sensitivity and need to inform the American public in an issue of intense concern, I request that you respond to and fulfill this request “as promptly as possible.” If you expect a significant delay and/or any time exceeding 20 business days, please contact me with information about the need for delay and when I might expect copies or the ability to inspect the requested records.
Fee Waiver· Requested
In accordance with 5 U.S.C. § 552(a)(4)(A)(iii) and your agency’s regulations, TCR requests a waiver of fees associated with processing this request for records. This request relates to urgent public health information for distribution to a large national audience.
By law, under USC 5, section 552 “Documents shall be furnished without any charge … if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.” Disclosure in this case meets the statutory criteria, as the records sought are part of TCR’s reporting on how pet food is regulated.
If I am not granted a complete fee waiver, I am willing to pay all fees necessary to process this request, but please notify me if you anticipate the fees to be more than $75. I do intend to appeal any denial of my request for a waiver administratively and to the courts if necessary.
Redactions
If you believe a portion, but not all records requested, are not disclosable under the law, please supply those that are required to be disclosed under the law.
If you deny any or all of this request, please cite each specific exemption you have determined justifies the refusal to release the information and notify me of the appeal procedures available to me under the law.
Thank you for your time and attention. If you have any questions, and given the time-sensitivity of this request, please contact me by phone or email rather than regular mail.
—
The Canine Review
Emily Brill
Dear Ms. Kotler:
I write to request a copy of the “routine update to Congress” FDA refers to in its Dec. 23, 2022 update on canine DCM:
How many reports of DCM has FDA received?
“In December 2022 as part of a routine update to Congress, FDA compiled information on canine DCM reports submitted to the agency. FDA has opted to share that information here for public awareness.
Expedited processing requested
The Canine Review is working with The Washington Post on a joint reporting project in light of significant public interest in the material requested and ongoing controversy surrounding the safety of certain dog foods. Given the time sensitivity and need to inform the American public in an issue of intense concern, I request that you respond to and fulfill this request “as promptly as possible.” If you expect a significant delay and/or any time exceeding 20 business days, please contact me with information about the need for delay and when I might expect copies or the ability to inspect the requested records.
Fee Waiver· Requested
In accordance with 5 U.S.C. § 552(a)(4)(A)(iii) and your agency’s regulations, TCR requests a waiver of fees associated with processing this request for records. This request relates to urgent public health information for distribution to a large national audience.
By law, under USC 5, section 552 “Documents shall be furnished without any charge … if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.” Disclosure in this case meets the statutory criteria, as the records sought are part of TCR’s reporting on how pet food is regulated.
If I am not granted a complete fee waiver, I am willing to pay all fees necessary to process this request, but please notify me if you anticipate the fees to be more than $75. I do intend to appeal any denial of my request for a waiver administratively and to the courts if necessary.
Redactions
If you believe a portion, but not all records requested, are not disclosable under the law, please supply those that are required to be disclosed under the law.
If you deny any or all of this request, please cite each specific exemption you have determined justifies the refusal to release the information and notify me of the appeal procedures available to me under the law.
Thank you for your time and attention. If you have any questions, and given the time-sensitivity of this request, please contact me by phone or email rather than regular mail.