FDA Wins FOIA Ruling on ‘Confidential Info’ Redactions

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A 10/6 New York Southern District ruling in a Freedom of Information Act (FOIA) lawsuit found that FDA appropriately allowed company-directed redactions of commercial confidential information contained in Sarepta’s NDA for Duchenne multiple sclerosis drug Exondys 51 (eteplirsen). The lawsuit by New York University journalism professor Charles Seife, who has written that it’s impossible to trust FDA decisions and statements because the agency “worries more about a drug’s side effect on a company than on a patient.” It was filed after FDA denied access to information about eteplirsen, which he described as censoring side effects, outcome measures, and even possible evidence of misconduct. His original FOIA request was intended to better understand the eteplirsen approval decision in which CDER director Janet Woodcock overruled agency medical reviewers (see earlier story) and approved the drug for marketing.

 

Seife’s primary argument was that the information requested is not confidential because Sarepta publicized it when submitting an application to the European Medicines Agency (EMA) knowing that the EMA would publish the submitted data when a decision was made. “But while the EMA did publish an assessment report of the drug when it later denied Sarepta's application, Seife provides no evidence that the report contains information identical to the withholdings at issue,” the ruling said. “In the alternative, Seife contends that Sarepta publicly shared the information at issue when it collaborated with third parties. But ‘[t]hese types of limited disclosures,’ subject to nondisclosure agreements and ‘not made to the general public,’ do not preclude Exemption 4 protection,” it said. The court further said that Seife offered “nothing to undermine the conclusion, based on declarations from those with firsthand knowledge of Sarepta's actual practices, that Sarepta has consistently maintained the confidentiality of the information.”

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