Federal agencies must tell the public the topics of regulations that are under consideration and how long the agencies have been considering them, a federal judge here ruled yesterday.
U.S. District Court Judge John H. Pratt said that disclosure of such "limited information" under the Freedom of Information Act would "at most" allow the public "to ascribe responsibility for delay to a particular agency."
Though the ruling -- that "regulatory logs" are public information -- seems on the surface to be a technicality, the advocacy group that brought the suit contends it could have important consequences if widely applied in practice.
President Reagan gave the OMB authority early in his presidency to review all significant government regulations, and critics have long charged that the administration uses the OMB to stall and eventually kill regulations without public scrutiny.
Pratt ruled in a suit filed earlier this year by the Public Citizen Health Research Group against the Department of Health and Human Services.
William Schultz, a lawyer for the group, said his organization has been "trying for years to get the FDA to regulate over-the-counter drugs" without much success. The problem is one of delay, Schultz said, while FDA recommendations are reviewed by the HHS secretary, who then submits the proposed rule to the Office of Management and Budget for further review.
"We feel that under this administration we've been excluded from the decision-making process," said Schultz. The ruling will allow the public to comment on the need for proposed regulations and "engage in public debate about whether HHS and OMB review makes any sense," he added.
Moses Newson, a spokesman for HHS, refused to comment, saying officials had not had a chance to read the court's opinion.
Schultz's group had filed a Freedom of Information Act request seeking portions of records that identified FDA decisions under review by the HHS and OMB.
The HHS argued in court that it rightfully denied the request under a Freedom of Information Act exemption for "inter-agency or intra-agency memorandums or letters."
Judge Pratt wrote in his opinion that the exemption does not apply to factual information, just to the opinion or recommendation contained in the document.
Pratt said HHS was "grasping for straws" when it asserted that it had a privilege "to protect public officials from lobbyists while they deliberate on public policy." Pratt said the regulatory process was "not a private one, nor did Congress" intend it to be.
Schultz said the ruling would allow the public to learn of regulations proposed by agencies other than the FDA, including the Environmental Protection Agency and the Occupational Safety and Health Administration.
Under the Reagan administration, the OMB tells the heads of virtually all agencies whether their proposed regulations are consistent with the administration's principles, said Robert Bedell, an OMB deputy administrator.
Bedell, who said he had not read Pratt's opinion, said he believes OMB is "not really affected" by the decision because OMB was not a defendant in the case.
Asked whether the OMB would release the documents if a Freedom of Information Act request were filed, Bedell said, "That would depend on what the request is exactly and what [OMB head] Jim Miller's decision is."
Schultz said his organization has been lobbying the FDA since 1982 to require a label warning parents not to give aspirin to children with flu or chicken pox. Aspirin sometimes induces Reye's syndrome in children with such illnesses.
"We say to the FDA, 'Why aren't you doing something?' and they say, 'We are,' " said Schultz. "We have no way to put any pressure on anybody unless we know who is at fault."