The U.S. Court of Appeals for the District of Columbia Circuit decision in the case of Consumer Federation of America v. Department of Agriculture is a victory for open government and could have important public health results. The Court of Appeals rejected the efforts of former USDA Under Secretary Elsa Murano and former FSIS deputy administrator Linda Swacina to hide records of their meetings with industry officials during a key period in meat inspection rulemaking. The FOIA request also sought records of former Under Secretary Merle Pierson and former FSIS Administrator Gary McKee.
Murano and Swacina declared that their appointment calendars were “private” and not subject to FOIA requests. It is important to know that these so-called “private” calendars charted the schedules of two high ranking public officials. They were prepared by employees of the U.S. government during their work hours and using government computers. They circulated to other government employees to help them schedule these public officials.
Even for an Administration that has been hostile to open government, this was an extraordinarily blatant effort to dodge legal requirements, conceal the influence of industry lobbyists and prevent consumers from meaningful participation in government decision making. Consumer Federation of America is grateful that the Court has rejected it. We look forward to receiving the calendars so we can track the industry’s influence.
The Court of Appeals decision may have important public health implications as well. Listeria monocytogenes is a particularly virulent foodborne pathogen that most commonly strikes pregnant women and people over 60. Twenty percent of those who contract this form of food poisoning die. Pregnant women who get Listeriosis usually suffer either miscarriage or stillbirth. The disease is most commonly contracted after eating meat and poultry products labeled, “cooked, ready-to-eat” and bearing the USDA inspection seal.
Despite this, USDA in 2003, issued an interim final rule that relieves meat companies from having to test finished ready-to-eat products for the presence of Lm and reporting to the government if it is found. Consumer groups have urged that this protection be added to the control program. The Bush Administration has refused and, over the past three years, progress in reducing the rate of Listeria food poisoning has stopped. Government failed to meet its own goals, set in Healthy People 2010 and amended in 2000, of reducing the rate of Listeria food poisoning to 2.5 cases per million. In fact, after dropping for several years under the current USDA rule the rate has increased in three of the last four years, rising from 2.7 in 2004 to 3 in 2005.
The Bush Administration tried to conceal meetings with industry officials that occurred during a period when the Department was making important decisions about protecting the public from Listeria monocytogenes in ready to eat meat and poultry products. After those meetings USDA weakened previous proposals to require meat and poultry processors to take effective steps to reduce Listeria food poisoning.
Even before this decision, the current Under Secretary for Food Safety, Dr. Richard Raymond, directed that his calendar and records of his meetings with people from outside the government be posted on the FSIS website. This practice is followed by other government agencies.
CFA is also grateful to the Georgetown University Law School Institute for Public Representation for representing the consumer interesting this case.