The Washington State Department of Agriculture is about to find out if appeasement works with the U.S. Food and Drug Administration.

In 2018 the FDA stopped sharing nonpublic information with the state department (WSDA), and a top state official says the action “had a significant negative impact” on food safety.

A recent issue involving the state’s public records law is an example of the risk. Washington’s statute on public disclosure has fewer exemptions than the federal Freedom of Information Act (FOIA).

The Evergreen State’s 48-year old Public Records Act “favors disclosure and requires the narrow application of the listed exemptions.”

Steve Fuller, WSDA’s assistant director for food safety, is the man caught between the information sensitive FDA and his state’s open records tradition. He gained unanimous legislative support for an agency requested bill that becomes effective July 28.

House Bill (HB) 1385 adds as an exemption to state public disclosure “information or records obtained pursuant to a Food and Drug Administration contact or commissioning agreement. . .”

It further adds that the new exemption includes in state law, FOIA exemptions for information involving trade secrets, confidential commercial information (CCI), information under federal deliberative process privilege, information compiled for law enforcement purposes, and information expressly required to be kept confidential by other federal laws.

Fuller shared his predicament with a legislative committee on Feb. 1. He said his state food safety unit and FDA share regulatory responsibilities for food processors and distributors.

“So perhaps to oversimplify we handle intrastate commerce, and they (FDA) handles interstate commerce,” he told legislators. “So to have a well run and integrated food safety system, we collaborate with our local partners at FDA, whereby we do some of the inspection work for them.”

Fuller told the Olympia meeting attendees that WSDA has multiple contracts with FDA totaling about $5 million a year. That funds about 20 of the department’s 60 full-time equivalents (FTEs) dedicated to food safety and animal feed safety.

“We share information back and forth, and it means that we sometimes hold information that FDA considers to be nonpublic information under federal law,” Fuller added.

“Last year,” he continued, “some legal tensions between state and federal laws requiring disclosure of this kind of information came to light and FDA responded by withholding nonpublic information from us.

“This has had a sginficant negative impact on our ability to do our work and effectively collaborate with FDA,” he continued. “As one important example, we’re no longer participating in national conference calls about outbreaks and recall activities because some federally nonpublic information might be shared on those calls,” the Legislature record of his testimony says.

“This limits our ability to protect public health and puts our contacts at risk.”

Fuller is on vacation this week and was not available for further comment.

The legislative record does not cite the names of any FDA officials involved in shutting off information to Washington State.

House Deputy Majority Leader Larry Springer, D-Kirkland, sponsored HB 1385. He told his colleagues that HB 1385 was “one of those strange little bills” over a “quirk” in our Public Records Act.

“While trying to adhere to, as much as possible, total disclosure of as much information as we can, this scenario is a Catch 22 where food safety investigators are concerned,” he explained.

Springer, former Mayor Kirkland, WA, said the Department of Agriculture “has to work in close cooperation with the Food and Drug Administration and we normally would make available that information to the public through our public records and dislcloosure act.”

“However, the federal government exempts some of those records and some of that information for a reason,” Springer added.

He said disclosure of the federal nonpublic information would continue to mean FDA would stop sharing the information with the state, denying WSDA precious food safety information.

Springer said HB1385 contains the narrowest exemption it could while satisfying the FDA’s secrecy demands.

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