HHS/BARDA -- Moderna

To Whom It May Concern:

Pursuant to the Freedom of Information Act, I hereby request the following records:

On March 21, 2020, HHS announced an agreement with Regeneron and Sanofi for the development of a potential COVID vaccine:
https://www.hhs.gov/about/news/2020/03/21/hhs-funds-phase-2-3-clinical-trial-for-potential-treatment-for-covid-19.html

I hereby request the full text of the agreements between HHS/BARDA and Regeneron and Sanofi.

On March 30, 2020, HHS announced an agreement with the pharmaceutical firms Janssen Research & Development (part of Johnson & Johnson) and Moderna for the development of a potential COVID vaccine:
https://www.hhs.gov/about/news/2020/03/30/hhs-accelerates-clinical-trials-prepares-manufacturing-covid-19-vaccines.html

On April 16, 2020, Moderna issued a press release that "announced an agreement for a commitment of up to $483 million from the Biomedical Advanced Research and Development Authority."
https://investors.modernatx.com/news-releases/news-release-details/moderna-announces-award-us-government-agency-barda-483-million

I hereby request the full text of the agreement between HHS/BARDA and Janssen Research & Development.

I hereby request the full text of the agreement between HHS/BARDA and Moderna.

I am requesting a waiver of all fees under 5 U.S.C. Section 552(a)(4)(A)(iii). The information I seek is in the public interest because it will contribute significantly to public understanding of the operations or activities of the government and is not primarily in my commercial interest. This request is not a commercial request -- it is being made by a media organization.

I believe I meet the criteria for a fee waiver recognized by the executive branch - and by the federal courts, See Project on Military Procurement v. Department of the Navy, 710 F. Supp. 362 363, 365 (D.C.D. 1989). My request concerns the operations or activities of government because the records relate to public policy matters unfolding right now.

Also, the information sought has informative value, or potential for contribution to public understanding. Please note the decision in Elizabeth Eudey v. Central Intelligence Agency, 478 F. Supp. 1175 1176 (D.C.D. 1979) (even a single document has the potential for contributing to public understanding). As a reporter for Jacobin magazine and the newsletter Too Much Information, I plan to disseminate this information to the public at large through publication at Jacobin (www.jacobinmag.com) and sirota.substack.com.

In addition, the release of this information will have a significant impact on public understanding because it will illustrate how public policy decisions are influenced and made by public officials. The policy matters this request impact millions of people in their daily lives, and these documents will show how those matters are perceived by public officials and influenced by outside interests.

In your deliberations, please take note of the following cases: Campbell v. U.S. Department of Justice, 334 U.S. App. D.C. (1998)(administrative and seemingly repetitious information is not exempt from fee-waiver consideration); Project on Military Procurement (agencies cannot reject a fee waiver based on the assumption that the information sought is covered by a FOIA exemption; and Landmark Legal Foundation v. Internal Revenue Service, 1998 U.S. Dist. LEXIS 21722 (D.C.D. 1998)(the fact that the information will soon be turned over to a public body does not exempt the material from fee-waiver consideration).

If it is your position that some records are exempt from disclosure but others are not, I request that you provide the documents that are not exempt. For the exempted documents, I request that you provide an index of those exempted documents as required under Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1972). As you are aware, a Vaughn index must describe each document claimed as exempt with sufficient specificity “to permit a reasoned judgment as to whether the material is actually exempt under FOIA.” Founding Church of Scientology v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979). Moreover, the Vaughn index must “describe each document or portion thereof withheld, and for each withholding it must discuss the consequences of supplying the sought-after information.” King v. U.S. Dep’t of Justice, 830 F.2d 210, 223-24 (D.C. Cir. 1987) (emphasis added). Further, “the withholding agency must supply ‘a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply.’” Id.at 224 (citing Mead Data Central v. U.S. Dep’t of the Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)).

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter.

I look forward to receiving your response to this request within 20 business days, as the statute requires.

Sincerely,

David Sirota
Editor at Large
Jacobin Magazine
‭Email: davidsirota@gmail.com
Phone: (970) 680-3406