FOIAengine Reveals the Questions Reporters Ask
Freedom of Information Act requests to the federal government can be an important early warning of bad publicity or litigation to come. PoliScio Analytics’ competitive-intelligence database FOIAengine tracks FOIA requests in as close to real-time as their availability allows. Of particular interest are news media requests, because investigations in progress can significantly affect stocks and markets once the stories hit.
Reporters at the Wall Street Journal, one of the most prolific news media requesters, filed at least 79 FOIA requests with federal agencies between January 2022 and the end of last month, according to FOIAengine’s database. Here’s the Who, the What, and the Backstory about the companies and agencies involved in requests made by the Journal last month (in January 2023, the most recent data available):
Who: Upside Foods (previously known as Memphis Meats): What: The Food and Drug Administration reported receiving a request from the Journal on January 24, 2023 for “all correspondence between Upside Foods (previously known as Memphis Meats) and the FDA.”
Backstory: Berkeley, Calif.-based Upside Foods is a synthetic-meat start-up with some very wealthy investors. The Journal has been covering it since at least 2016, when it was still known as Memphis Meats. Upside’s website says “we plan to share our first products with consumers in the coming months.” But will the FDA give it the go-ahead?
The company aspires to sell meat grown from animal cells in steel tanks, and is working on a synthetic replacement for fried chicken. So far, Upside raised $611 million in eight funding rounds. Its most recent $400 million Series C round last year valued the company at over $1 billion. Investors include the Abu Dhabi Growth Fund, Bill Gates, Cargill, Dentsu Ventures, SoftBank, Tyson Foods, and Kimbal and Christiana Musk. The FDA didn’t provide more information on the Wall Street Journal’s request. Upside Foods didn’t respond to a message seeking comment. Docket Alarm reveals that the company has mostly stayed out of the courtroom, with just one case, alleging theft of trade secrets, filed by Upside.
Who: TMC Acquisition LLC (aka Tailor Made Compounding): What: On January 19, 2023, the Journal asked the FDA for “access to and copies of all correspondence, including but not limited to letters, memos, emails, voice mails, and all attachments thereto, between the FDA and TMC Acquisition” concerning safety violations found during FDA inspections at Tailor Made’s production facility in February and March 2022.
Backstory: TMC has been trying to recover from a 2020 scandal involving the company and its founder, Jeremy Delk. Docket Alarm reveals that Tailor Made and Delk were indicted on federal criminal charges that they unlawfully distributed compounded drugs that were administered to race horses. Both pleaded guilty; the company forfeited $1.8 million. Numerous racing trainers were also indicted. The 2022 FDA inspections that the Journal asked about revealed numerous alleged safety violations by TMC’s new owners. The Journal’s request didn’t provide details about its reasons for asking. TMC didn’t respond to a message seeking comment.
Who: Various present or former federal officials who bought or sold stocks in companies they regulated. What: On January 14, 2023, Journal investigative reporter Brody Mullins filed eight nearly identical requests for “any and all investigative records at the Securities and Exchange Commission” concerning stock trades by eight present or former federal officials.
Backstory: The Journal’s groundbreaking reporting about ethically questionable stock trading by senior officials in the executive branch is moving into a new gear, and some of its targets are noteworthy. The requester, Mullins, is part of the team that broke the paper’s investigative series late last year about stock trading by federal officials. In the recent FOIA request, he asked whether the SEC opened investigations into trading by the following officials whom the Journal identified in its earlier reporting as among the most active such traders: Robert DeLuca (FDIA), Katie Pahner (ex-HHS), Jeff Goettman (ex-Treasury), Stephen Redd (ex-CDC), Elaine Chao (ex-Secretary of Transportation), Hugh Auchincloss (NIH), Michael Molina (ex-EPA), and Randolph Tritell (ex-FTC).
Two of the Journal’s targets are high profile: Chao is the wife of Senate Minority Leader Mitch McConnell (R-Ky.) and a former labor secretary in the George W. Bush administration and transportation secretary in the Trump Administration. Auchincloss is acting director of NIH’s National Institute of Allergy and Infectious Diseases, replacing Anthony Fauci in that role.
The Journal’s Mullins said the SEC FOIA office quickly responded that it had no records responsive to his request. Mullins said the newspaper’s investigation is ongoing. The SEC press office didn’t respond to FOIAengine’s request for comment. Redd said in reply to an email that he hadn’t previously known of the Journal’s FOIA request about him and also wasn’t aware of any past or present SEC investigations into his trades. Contact information for Molina was unavailable. FOIAengine didn’t receive replies to messages sent to the LinkedIn accounts of the other targets named by the Journal.
In a related FOIA request filled on January 11, 2023, the Journal asked the FDA for “communications with ethics officials at the FDA related to employees who held stock in companies on the FDA’s list of Significantly Regulated Organizations, including any referrals [or] communications with FDA ethics officials involving Malcolm Bertoni.” The Journal previously reported that Bertoni, a career FDA executive, retired after the ethics office rescinded its prior approval of his family’s investments in 70 companies that the FDA regulates.
Bertoni didn’t respond to a message seeking comment. In a statement from Jeremy Kahn, an FDA press officer, the agency said it didn’t have any information to provide “at this time” about the Journal’s request or about questions related to Bertoni. But, the agency helpfully added, “Please file a FOIA request with FDA’s Division of Freedom of Information for any information the agency may be able to provide on these issues.”
Coming next from FOIAengine: Requests pointed to the shaky cryptocurrency world of Sam Bankman-Fried, months before FTX imploded.
John A. Jenkins, co-creator of FOIAengine, is a Washington journalist and publisher whose work has appeared in The New York Times Magazine, GQ, and elsewhere. He is a four-time recipient of the American Bar Association’s Gavel Award Certificate of Merit for his legal reporting and analysis. His most recent book is The Partisan: The Life of William Rehnquist. Jenkins founded Law Street Media in 2013. Prior to that, he was President of CQ Press, the textbook and reference publishing enterprise of Congressional Quarterly. FOIAengine is a product of PoliScio Analytics (www.PoliScio.com), a new venture specializing in U.S. political and governmental research, co-founded by Jenkins and Washington lawyer Randy Miller. Learn more about FOIAengine here. To subscribe to FOIAengine, click here.
Write to John A. Jenkins at JJenkins@LawStreetMedia.com.