Court Cuts Covid Vaccine FOIA Stay to 6 Months

The DC federal court has approved an FDA request to stay its response to a Children’s Health Defense Freedom of Information Act (FOIA) request for records connected with the safety monitoring of Covid-19 vaccines through the VAERS (Vaccine Adverse Event Reporting System) database. But it cut the requested pause from 18 months to six months.

The order says FDA requested the stay in response to a Children’s Health Defense suit seeking to compel the agency to respond to its request. FDA said the stay was needed due to the “exceptional circumstances” presented by two orders from a Texas federal court ordering unusually high production rates in response to a suit filed by Public Health and Medical Professionals for Transparency requesting expedited processing of its request for documents related to Pfizer’s Covid vaccine.

FDA says, without contradiction, according to the court, that the second order covering the Pfizer vaccine imposes a record production rate that is “many orders of magnitude greater than anything any agency has ever encountered in a FOIA production order.” While the first order in the Pfizer case had FDA produce 55,000 pages per month, the second order called for 360,000 pages per month from this month forward.

FDA told the court that to comply with that second order it has “implemented sweeping organizational and work process changes including, among other things, hiring contractors and additional full-time employees…reorganizing staff, and diverting resources from processing other FOIA matters.”

The court order says it agrees that FDA has shown that “exceptional circumstances” are present and thus warrant a stay.

The DC court says it appreciates that it might seem unfair to other FDA requestors to see FDA devote so many resources to a different request, but it is not the court’s place to tamper with another legitimate federal court order. “This court must, and can only, take the record as it exists,” the order says. “Seen in that light, the court can only conclude that FDA is facing a Herculean undertaking that, despite the agency’s best efforts, precludes it from processing plaintiff’s FOIA request in the usual course.”

The court rejected Children’s Health Defense’s two reasons why FDA should be compelled to meet its request on time. But in approving a stay, it set the term at six months “subject to further consideration as events unfold. To the extent that FDA maintains that the burden it faces in the Texas litigation is excessive, it should take it up with that court. It is not this court’s role to second guess another district court.”