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FDA Whistleblowers Lose Document ‘Discovery’

A DC federal court has ruled that HHS properly withheld or redacted some documents relating to a suit brought by six current and former CDRH staffers through the National Whistleblower Center. In this latest phase in a Freedom of Information Act dispute between the whistleblowers and the department over access under “discovery” to records relating to the individuals’ employment, the department sought and received a partial summary judgment denying release of a specific subset of documents.

The court’s opinion says that the whistleblowers had provided a sufficient factual basis of government misconduct and that the court should review the documents in question to determine whether withholding was appropriate.

The ruling says the court determined that the documents in question “do not reflect the sort of government impropriety necessary to defeat the legal privileges invoked” by the department and thus were properly withheld or redacted under an FOIA exemption relating to evidence of government misconduct. The judge said the documents in question “involve the typical deliberations that the court would expect of government actors and do not evince the sort of corrupt decision-making process that would support an exception” to the exemption.


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