Hearings

(2) Item No. 2, relating to the pesticide registration program, is denied on the basis of 7 CFR 370.13(c) (1), (d) (1) through (3), and (e) (4), and 5 U.S.C. 552(b) (3) and (4).

(3) Item No. 4, relating to seizures made under FIFRA, is denied on the basis of 7 CFR 370.13 (e) (4) and (g) and 5 U.S.C. 522 (b) (5) and (7).

(4) Item No. 5, relating to violations recommended for prosecution under FIFRA, is denied on the basis of 7 CFR 370.13 (e) (4) and (g) and 5 U.S.C. 552 (b) (5) and (7).

(5) Item No. 6, relating to the process of citations for violations of FIFRA, is denied on the basis of 7 CFR 370.13 (e) (4) and (g) and 5 U.S.C. 552 (b) (5) and (7).

(6) Item No. 7, relating to the recall process, except the recall procedure previously given to Mr. Easley, is denied on the basis of 7 CFR 370.13 (d) (4), (e) (3) and (4), and (g), and 5 U.S.C. 552 (b) (4), (5), and (7).

(7) Items 11 and 12, relating to intra- or inter-departmental committees or study groups, are denied on the basis of 7 CFR 370.13(d) (2) and (4), (e)(3) and (4), and 5 U.S.C. 522 (b) (4) and (5).

Items of request Nos. 1, 4, 5, 6, and 7 call for information relating to investigatory files compiled for law enforcement purposes. Items Nos. 1, 4, 5, 6, 7, 11, and 12 call for material containing reports of internal deliberations and plans. Item No. 2 calls for files which contain formula information which is prohibited from disclosure by the basic ACT, FIFRA. Items Nos. 2, 7, 11, and 12 call for files containing information given to the Department in confidence.

Pesticide samples are collected by field inspectors and normally sent to the Pesticides Regulation Division laboratories for analyzing or testing. A file is made up for each sample. This file includes information and documents relative to the interstate shipment of the product, a complete copy of the product's labeling, the analytical and testing data relative to the product, and the evaluations and opinions of the staff concerning the product.

Certain of the information contained in these files would not be exempt from mandatory public disclosure. Such information would include information relative to the name of the sample, the location at which it was obtained, the date on which obtained, and the name of the inspector collecting the sample. However, information of this nature is not readily available. It could be obtained only by going through each file and extracting the particular information which is desired. Last year more than 7,000 samples were collected. This means more than 7,000 files would have to be reviewed in order to obtain the information. We do not have the manpower to do this.

Other information in the files is, and should be, exempt from disclosure. Such information would include the analytical and testing data and the internal memorandums of the staff relative to the sample. If such information were available to the public, it could be used by one manufacturer against a competitor to such an extent that our regulatory efforts would be greatly nullified. In addition, if the "working papers" in our files are made available to all members of the regulated industry, we could not effectively operate as an enforcement agency. These files are used in connection with the recall process, seizures, citations for violations, and recommendations for prosecution under the Act.

With respect to the files and data in the pesticide registration program, it is also true that certain information would not be exempt from disclosure. As in the case of files on the sampling program, however, such information is not readily available and it would be necessary to review more than 45,000 files to obtain this information.

Concerning item of request No. 3, again it must be pointed out, as previously discussed with Messrs. Easley and Nevas, if the reuest will be clarified and made specific. ARS will be pleased to give it further consideration and try to provide information that will be meaningful in the objectives of your project. It must be noted that the staff time required by the Pesticides Regulation Division to sort out files and accumulate information for the use of your staff must be at the convenience of the Division and ARS has no alternative but to make a charge to recover the full cost to the Federal Government for such service.

Item of request No. 14 is so broad and general that our staff is unable to make a reasonable conclusion as to what is wanted. Messrs. Easley and Nevas were specifically informed that it had not been found necessary to maintain a documented list of specific reports which were not to be made available under the Freedom of Information Act. The reports in ARS files that would appear in

such listing are adequately covered by existing regulations under appropriate headings in the category of exempt records as described under Title VII, Chapter 3, Subpart B, Section 370.13 of the Code of Federal Regulations. To date, ARS has not found a need for a list of this type in carrying out the responsibilities of the Pesticides Regulation Division, and, therefore, does not propose to prepare such a list.

We trust that we have adequately clarified the ARS position in connection with your request that is now before this Agency for consideration.

Sincerely,

R. J. ANDERSON, Acting Administrator.

EXHIBIT 6

JANUARY 12, 1970.

Mr. R. J. ANDERSON,

Acting Administrator, Agricultural Research Service, U.S. Department of Agriculture, Washington, D.C.

DEAR MR. ANDERSON: Your letter of November 17, 1969, denies our appeal from your denial of access to documents of the Pesticide Regulation Division on two purported grounds. One ground is that the records are covered by one or another of the exemptions to disclosure under the Freedom of Information Act in 5 U.S.C. 552(b). With respect to this ground it seems that there is no recourse but to leave it to the decision of the courts.

A second ground, however, is that the records requested were not sufficiently identified. In support of this claim, your letter states: "In a number of discussions that ARS staff members had with Messrs. Easley and Nevas, and on one occasion when you were present, repeated efforts were made to have your request contain a more specific description of what you desired to review rather than a broad and indefinite type of request. ARS was not successful in getting your staff to modify or to be specific in their request."

This charge is disingenuous in the extreme. Let us review the facts. As you know, in our efforts to gather the information we needed on pesticide regulation, we learned that your office maintains three master index files:

(1) master record card file, indicating the status of complaints or other action involving manufacturers, filed by name of manufacturer; 2) a master registration card file, which is filed by registration number and is cross-referenced to the pesticide and the manufacturer by name; and 3) a summary file of monthly reports of all seizure and citation actions taken with the month, filed chronologically.

Despite repeated requests, we were denied access to these files. Had we had such access we could have specified our requests for files by name, data and number, which is apparently the only data which will satisfy your demand for specificity. We once again herewith request access to these files. The "Catch 22" logic which characterizes your charges of lack of specificity in our requests is extraordinary: you deny us information on the grounds that it lacks specifying data which is available in index files also denied to us.

In any case, the information furnished by us in our original request was more than sufficiently specific for your personnel, familiar as they are with the records, to determine exactly what to furnish us. But to leave no doubt as to the specificity of our request, I will add the following:

Your files are arranged as follows:

(a) "Registration Jackets" which contain all the material submitted by a manufacturer when he seeks registration of a chemical product: application forms together with all PRD notations from the various pesticide evaluation staffs; it also contains the product formula (which we do not desire to see) in a small brown envelope marked "Confidental," slipped in the jacket. These jackets are filed by manufacturer number and then by product number within the manufacturer number. Once we have had access to the master index files described above, we will be happy to furnish you with a list, by number of files we desire to examine; we have already requested, and have been denied access to File No. 201-136, the registration file of Shell Chemical Co.'s Vapona No-pest Strip.

(b) "Enforcement File Folders" which contain the sample collections report of the field inspector who collected the sample, together with all laboratory reports on the tests run on the sample, all recommendations for actions and all

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The question of who has standing to be heard is ambiguous and remains to be tested.

In the course of our study of pesticide regulation, we requested and were denied any access to registration on other files in the Pesticides Regulation Division. We have filed suit under the Freedom of Information Act to gain access to this information.

In the meantime, there is no way for an individual citizen, an interested scientist, or even a member of the U.S. Senate to review safety data submitted by a manufacturer either before or after a pesticide enters the market.

I request permission to enter into the record our complaint under the Freedom of Information Act which was filed in U.S. District Court for the District of Columbia.

Senator HART. It will be received.

(The complaint follows:)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Civil Action No. 740-70

HARRISON WELLFORD, JOE TOM EASLEY, BERNARD NEVAS, PLAINTIFFS

CLIFFORD HARDIN, SECRETARY OF AGRICULTURE; GEORGE W. IRVING, JR., ADMINISTRATOR, AGRICULTURAL RESEARCH SERVICE; F. R. MANGHAM, DEPUTY ADMINISTRATOR, AGRICULTURAL RESEARCH SERVICE; H. W. HAYS, DIRECTOR, PESTICIDE REGULATION DIVISION; PESTICIDE REGULATION DIVISION, AGRICULTURAL RESEARCH SERVICE; DEPARTMENT OF AGRICULTURE, DEFENDANTS

COMPLAINT FOR INJUNCTION AGAINST UNLAWFUL WITHHOLDING OF RECORDS AND FOR ORDER FOR PRODUCTION OF RECORDS

1. This is an action under the Freedom of Information Act, 5 U.S.C. 552, to enjoin defendants from withholding certain specified records maintained by defendants, and to order them immediately to produce, and permit plaintiffs to inspect and copy, these records.

2. This action arises under Section (a)(3) of the Freedom of Information Act, 81 Stat. 54, 5 U.S.C. 552(1967). This court has jurisdiction pursuant to the provisions of 5 U.S.C. 552(a) (3).

3. The agency records sought to be produced in this action are located within the District of Columbia.

4. Plaintiffs are "persons" within the meaning of 5 U.S.C. 552.

5. The defendants Department of Agriculture (“Department") and Pesticide Regulation Division ("P.R.D.") of the Agricultural Research Service ("A.R.S.") are agencies within the definition of 5 U.S.C. 552. The defendant Clifford Hardin is Secretary of Agriculture and head of the Department; defendant Hays is Director of the P.R.D.; defendant Mangham is Deputy Administrator for Administration of A.R.S.

6. In the summer of 1969, plaintiff Wellford undertook the supervision of two law students, plaintiffs Joe Tom Easley and Bernard Nevas, in a study of the P.R.D.

7. On June 30, 1969, plaintiff Easley, acting on behalf of all three plaintiffs, submitted to defendants Hays and Mangham a written request (Exhiibt 1) to inspect and/or copy fourteen specifically identified groups of records of the P.R.S. The records involved related to various facets of the agency's pesticide regulation program. At the same time, Easley made an oral request of Hays for examination of the registration file for a pesticide known as Shell Vapona "No-Pest Strip."

8. Defendants refused to grant immediate access to any of the records requested, and Hays suggested that Easley and Nevas enter into a series of briefings with P.R.D. staff members, giving as a reason that the request for documents would thereby be made more specific.

9. A briefing session was held on July 1, 1969, but on July 2, 1969, Hays informed Easley and Nevas that no further sessions would be held, and that none of the records requested would be made available. At Hays' request, Easley put his request for the Shell Vapona “No-Pest Strip" file in writing (Exhibit 2). 10. On July 7, 1969, Hays denied Easley's request for the Shell Vapona "No-Pest Strip" file (Exhibit 3).

11. On July 23, 1969, defendant Mangham wrote Easley, granting the request for certain items (Nos. 8, 10 and 13), referring plaintiffs elsewhere for one item (No. 9) and denying the rest (Nos. 1-7, 11, 12 and 14). (Exhibit 4).

12. On August 15, 1969, plaintiff Wellford, on behalf of all three plaintiffs, appealed in writing to defendant Irving.

13. On November 17, 1969, R. J. Anderson, Acting Administrator of the A.R.S., replied to Welford's appeal, upholding defendant Mangham's denial of access to documents and the reasons given therefor. (Exhibit 5)

14. Wellford responded to Anderson on January 12, 1970, taking issue with Anderson's reasons for denial and, specificaly, identifying the records sought with still greater specificity, further pointing out that defendants had refused to allow plaintiffs access even to defendants' indices, and further limiting the request to documents no more than five years old. (Exhibit 6)

15. On February 20, 1970, Irving responded further, granting plaintiffs access to one of three indices defendants maintain, but otherwise affirming the prior denials. (Exhibit 7)

16. Plaintiff's request and appeals complied with defendants' applicable regulations. Plaintiffs have exhausted their administrative remedies.

17. Plaintiffs' study of the P.R.D. has been severely impeded by defendants' refusal to make the requested records available.

18. Defendants are required by 5 U.S.C. 552(a)(3) to make the records requested promptly available to plaintiffs; defendants have failed and refused to do so and, unless ordered to do so by this Court, will continue to deny plaintiffs access to the records requested, in violation of 5 U.S.C. 552(a)(3) to plaintiffs' great injury.

19. The records that plaintiffs have requested and to which access has been denied in violation of the Freedom of Information Act are:

(a) Defendants' master record card file, indicating the status of complaints or other action involving manufacturers, filed by name of manufacturer;

(b) Defendants' summary file of monthly reports of all seizure and citation actions with the month, filed chronologically;

(c) Defendants' "Registration Jackets" containing material submitted by a manufacturer when he seeks registration of an economic poison, application forms and P.R.D. staff notations (except the product formula, in a small brown envelope marked "Confidential"); e.g., Registration File No. 201-136, the registration file of Shell Chemical Co.'s Vapona No-Pest Strip;

(d) Defendants' "Enforcement File Folders", containing field inspectors' reports of economic poison sample collections, laboratory reports of tests of samples, recommendations for action and correspondence with the manufacturer regarding the sample; filed by number;

(e) Defendants' "Company Correspondence Folder", containing correspondence with each manufacturer of an economic poison filed by manufacturer;

(f) To the extent that they do not appear in the files described in paragraphs (a) through (e), the records maintained by defendants with respect to:

(1) the pesticide accident reporting mechanism (e.g., who reported each accident, how P.R.D. evaluated the information, action taken, if any, efforts of P.R.D. to coordinate with other governmental and private organizations to facilitate accident reporting);

(2) seizures made under the Federal Insecticides, Fungicides and Rodenticides Act (FIFRA);

(3) violations recommended for prosecution under FIFRA;

The question of who has standing to be heard is ambiguous and remains to be tested.

I request permission to enter into the record our complaint under the Freedom of Information Act which was filed in U.S. District Court for the District of Columbia.

Senator HART. It will be received.

(The complaint follows:)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Civil Action No. 740-70

HARRISON WELLFORD, JOE TOM EASLEY, BERNARD Nevas, PLAINTIFFS

บ.

COMPLAINT FOR INJUNCTION AGAINST UNLAWFUL WITHHOLDING OF RECORDS AND FOR ORDER FOR PRODUCTION OF RECORDS

2. This action arises under Section (a) (3) of the Freedom of Information Act, 81 Stat. 54, 5 U.S.C. 552 (1967). This court has jurisdiction pursuant to the provisions of 5 U.S.C. 552(a) (3).

3. The agency records sought to be produced in this action are located within the District of Columbia.

4. Plaintiffs are "persons" within the meaning of 5 U.S.C. 552.

5. The defendants Department of Agriculture ("Department") and Pesticide Regulation Division (“P.R.D.") of the Agricultural Research Service (“A.R.S.”) are agencies within the definition of 5 U.S.C. 552. The defendant Clifford Hardin is Secretary of Agriculture and head of the Department; defendant Hays is Director of the P.R.D.; defendant Mangham is Deputy Administrator for Administration of A.R.S.

6. In the summer of 1969, plaintiff Wellford undertook the supervision of two law students, plaintiffs Joe Tom Easley and Bernard Nevas, in a study of the P.R.D.

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