Scheduling order (production schedule) — PHMPT v. FDA

Record facts

UNITED STATES DISTRICT COURT · No. 4:21-cv-01058-P · Doc. 35 · 2022-01-06 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF TEXAS 
FORT WORTH DIVISION 
 
PUBLIC HEALTH AND MEDICAL 
PROFESSIONALS FOR TRANSPARENCY,  
 
Plaintiff,  
 
 
v. 
 
No. 4:21-cv-1058-P 
FOOD AND DRUG ADMINISTRATION,  
 
Defendant. 
 
ORDER 
This case involves the Freedom of Information Act (“FOIA”). 
Specifically, at issue is Plaintiff’s FOIA request seeking “[a]ll data and 
information for the Pfizer Vaccine enumerated in 21 C.F.R. § 601.51(e) 
with the exception of publicly available reports on the Vaccine Adverse 
Events Reporting System” from the Food and Drug Administration 
(“FDA”). See ECF No. 1. As has become standard, the Parties failed to 
agree to a mutually acceptable production schedule; instead, they 
submitted dueling production schedules for this Court’s consideration. 
Accordingly, the Court held a conference with the Parties to determine 
an appropriate production schedule.1 See ECF Nos. 21, 34.  
“Open government is fundamentally an American issue”—it is 
neither a Republican nor a Democrat issue.2 As James Madison wrote, 
“[a] popular Government, without popular information, or the means of 
acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps, both. 
Knowledge will forever govern ignorance: And a people who mean to be 
their own Governors, must arm themselves with the power which 
 
1Surprisingly, the FDA did not send an agency representative to the scheduling 
conference.   
2151 CONG. REC. S1521 (daily ed. Feb. 16, 2005) (statement of Sen. John Cornyn).   
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knowledge gives.”3 John F. Kennedy likewise recognized that “a nation 
that is afraid to let its people judge the truth and falsehood in an open 
market is a nation that is afraid of its people.”4 And, particularly 
appropriate in this case, John McCain (correctly) noted that “[e]xcessive 
administrative secrecy . . . feeds conspiracy theories and reduces the 
public’s confidence in the government.”5  
Echoing these sentiments, “[t]he basic purpose of FOIA is to ensure 
an informed citizenry, [which is] vital to the functioning of a democratic 
society.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1977). 
“FOIA was [therefore] enacted to ‘pierce the veil of administrative 
secrecy and to open agency action to the light of public scrutiny.’” Batton 
v. Evers, 598 F.3d 169, 175 (5th Cir. 2010) (quoting Dep’t of the Air Force 
v. Rose, 425 U.S. 352, 361 (1976)). And “Congress has long recognized 
that ‘information is often useful only if it is timely’ and that, therefore 
‘excessive delay by the agency in its response is often tantamount to 
denial.’” Open Soc’y Just. Initiative v. CIA, 399 F. Supp. 3d 161, 165 
(S.D.N.Y. 2019) (quoting H.R. REP. NO. 93-876, at 6271 (1974)). When 
needed, a court “may use its equitable powers to require an agency to 
process documents according to a court-imposed timeline.” Clemente v. 
FBI, 71 F. Supp. 3d 262, 269 (D.D.C. 2014).  
Here, the Court recognizes the “unduly burdensome” challenges that 
this FOIA request may present to the FDA. See generally ECF Nos. 23, 
30, 34. But, as expressed at the scheduling conference, there may not be 
a “more important issue at the Food and Drug Administration . . . than 
the pandemic, the Pfizer vaccine, getting every American vaccinated, 
[and] making sure that the American public is assured that this was not 
[] rush[ed] on behalf of the United States . . . .” ECF No. 34 at 46. 
 
3Letter from James Madison to W.T. Barry (August 4, 1822), in 9 WRITINGS OF 
JAMES MADISON 103 (S. Hunt ed., 1910).  
4John F. Kennedy, Remarks on the 20th Anniversary of the Voice of America (Feb. 
26, 1962).  
5America After 9/11: Freedom Preserved or Freedom Lost?: Hearing Before the S. 
Comm. on the Judiciary, 108th Cong. 302 (2003).  
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Accordingly, the Court concludes that this FOIA request is of paramount 
public importance. 
“[S]tale information is of little value.” Payne Enters., Inc. v. United 
States, 837 F.2d 486, 494 (D.C. Cir. 1988). The Court, agreeing with this 
truism, therefore concludes that the expeditious completion of Plaintiff’s 
request is not only practicable, but necessary. See Bloomberg, L.P. v. 
FDA, 500 F. Supp. 2d 371, 378 (S.D.N.Y. Aug. 15, 2007) (“[I]t is the 
compelling need for such public understanding that drives the urgency 
of the request.”). To that end, the Court further concludes that the 
production rate, as detailed below, appropriately balances the need for 
unprecedented urgency in processing this request with the FDA’s 
concerns regarding the burdens of production. See Halpern v. FBI, 181 
F.3d 279, 284–85 (2nd Cir. 1991) (“[FOIA] emphasizes a preference for 
the fullest possible agency disclosure of such information consistent 
with a responsible balancing of competing concerns . . . .”).  
Accordingly, having considered the Parties’ arguments, filings in 
support, and the applicable law, the Court ORDERS that:  
1. The FDA shall produce the “more than 12,000 pages” articulated 
in its own proposal, see ECF No. 29 at 24, on or before January 
31, 2022.  
2. The FDA shall produce the remaining documents at a rate of 
55,000 pages every 30 days, with the first production being due 
on or before March 1, 2022, until production is complete.  
3. To the extent the FDA asserts any privilege, exemption, or 
exclusion as to any responsive record or portion thereof, FDA 
shall, concurrent with each production required by this Order, 
produce a redacted version of the record, redacting only those 
portions as to which privilege, exemption, or exclusion is asserted. 
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4. The Parties shall submit a Joint Status Report detailing the 
progress of the rolling production by April 1, 2022, and every 
90 days thereafter.6  
SO ORDERED on this 6th day of January, 2022.  
 
6Although the Court does not decide whether the FDA correctly denied Plaintiff’s 
request for expedited processing, the issue is not moot. Should the Parties seek to file 
motions for summary judgment, the Court will take up the issue then.  
 
Mark T. Pittman 
UNITED STATES DISTRICT JUDGE 
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