(Recasts with newest Grassley letters)
By Anna Yukhananov
WASHINGTON, July 16 (Reuters) – The top Republican on the
Senate Judiciary Committee urged U.S. law enforcement officials
to investigate whether the Food and Drug Administration violated
the law in its secret monitoring of staff emails.
Senator Chuck Grassley of Iowa said the FDA retaliated
against its employees who blew the whistle about unsafe medical
devices, and specifically monitored their emails to Congress. He
also asked the FDA to explain who at the agency first asked for
the email monitoring.
Six current and former FDA scientists and doctors filed a
lawsuit in January charging the agency tried to repress warnings
about potential corruption in device reviews by retaliating
against them for passing information to Congress and the media.
Over the weekend, the scandal grew when the New York Times
revealed documents detailing the wide scale of the surveillance
operation. The documents, which were inadvertently posted online
by an FDA contractor, showed the FDA secretly captured thousands
of emails the scientists sent privately to lawmakers, their
aides, journalists and President Barack Obama.
The report further stoked anger from lawmakers who were
already concerned about the surveillance.
After reviewing the documents, Grassley said he was
referring the case to the Department of Justice, among others,
to investigate whether the FDA violated the law on whistleblower
protections, and a separate law about the privacy of emails.
“Continued stonewalling and secrecy about the spying on
these employees’ protected disclosures is unacceptable,”
Grassley said in a letter to FDA Commissioner Margaret Hamburg
sent on Monday.
AUTHORIZED SPYING
Grassley also asked the FDA to finally explain which
official first requested the agency to monitor the private
emails of five employees, which began in 2010. The monitoring
was authorized by the FDA’s General Counsel, Grassley said.
Grassley first asked the FDA about this matter in January,
but in a response sent on Friday, the FDA said it was still
gathering the information.
The FDA said on Monday it monitored emails only to ensure
its staff were not sharing “trade secret” information about
specific device companies, which is forbidden by law, and that
it never stopped the whistleblowers from contacting lawmakers,
journalists or government auditors.
“The only individuals whose email was being monitored were
(five) FDA employees,” said Erica Jefferson, FDA spokeswoman.
“We did not impede or interfere in any way with any employees’
communication to members of Congress.”
In a letter to Grassley sent on Friday, the FDA also said it
is reviewing whether its secret monitoring of staff emails
adequately protected whistleblowers.
“FDA is currently reviewing and evaluating its policies and
practices to ensure that they are consistent with the law and
Congress’s intent to provide a secure channel for protected
disclosures,” Jeanne Ireland, the FDA’s assistant commissioner
for legislation, said in a letter.
The Office of Special Counsel (OSC), an independent agency
that protects federal whistleblowers, in February broadened an
investigation into whether the FDA violated the law by keeping
track of employee emails to Congress and the OSC. Such emails
are supposed to remain confidential.
The OSC and the Office of Management and Budget also sent
memos to all government agencies in June, warning them about the
legal restrictions on monitoring employees’ emails. The memos
suggest other agencies beyond the FDA may face similar issues in
monitoring whistleblowers.
CONGRESSIONAL LETTERS
Grassley also questioned how an FDA contractor, Quality
Associates Inc, was able to post thousands of pages of FDA’s
internal email monitoring, including confidential company
information, on a file transfer site that was available to the
public until late last week.
Quality Associates, which archives and manages documents,
also has contracts with the National Institutes of Health, the
Internal Revenue Service and the Department of Homeland
Security, among others.
The online documents also included internal emails and
documents for NIH grants, Grassley said.
The FDA said it is also investigating what happened with the
data breach at Quality Associates.
The company, based in Fulton, Md., was not immediately
available for comment after the close of business on Monday.
(Reporting by Anna Yukhananov; Editing by Tim Dobbyn, Bernard
Orr)
