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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
Civil Action No. 740-70
HARRISON WELLFORD, JOE Tom EASLEY, BERNARD NEVAS, PLAINTIFFS
CLIFFORD HARDIN, SECRETARY OF AGRICULTURE; GEORGE W. IRVING, JR., ADMINIS
TRATOR, 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
COJIPLAINT 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 Easles, 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 "Xo-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. (Exbibit 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;
(6) 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;
(4) procedure for and records respecting citation for violations of FIFRA including supporting files, letters of citation, responses by manufacturers and P.R.D. follow-up;
(5) the recall process, including procedures for recall and files in cases of recall, manufacturer action, P.R.D. supervision, quantity and location of the product recalled, memoranda respecting the effectiveness or completeness of recall action;
(6) intra- or inter-departmental committees or study groups which may have made recommendations concerning pesticide regulation ;
(7) the Interdepartmental Committee on Pesticides and its working
group, minutes of meetings and recommendations made at meetings. 20. Section 552 (a) (3) of Title 5, U.S.C. provides that actions brought thereunder shall take precedence on the docket and shall be expedited in every way.
Wherefore, plaintiffs pray that this Court:
1. Issue a preliminary and permanent injunction to the defendants, their agents and subordinates, enjoining them from further withholding the agency records demanded;
2. Order the immediate production of the records for inspection and copying ;
3. Order defendants to reimburse plaintiffs for the reasonable expenses incurred in bringing this proceeding;
4. Provide for expedition of proceedings on this complaint; and 5. Grant such other and further relief as may be appropriate.
HARVARD LAW SCHOOL STUDENT TASK FORCE
Agricultural Research Service, Pesticides Regulation Division Items desired, copies of or access to:
1. Files and data on the pesticide sampling program: where samples were taken, who collected each sample, what pesticides from each manufacturer were sampled. Also, what tests were run on each sample, who performed the test, and what action if any was taken on the test report.
2. Files and data on the pesticide registration program: copies of all proposed labeling and directions for use. Where such files contain proprietary information (specific formulas), provision should be made for either
(a) access to the entire file with the understanding that no proprietary information will be copied or divulged, or
(6) access to the requested file after such proprietary information has been removed. The mere presence of an item of proprietary information in
a particular file does not exempt that entire file from public disclosure. 3. Files and data on the pesticide accident reporting mechanism: who reported each accident, how PRD evaluated the information, what action if any was taken on the basis of such information. Also, what efforts PRD has made to coordinate with other governmental and private organizations in order to facilitate accident reporting.
4. Files and data on seizures made under FIFRA, including multiple seizures. 5. Files and data on violations recommended for prosecution under FIFRA.
6. Files and data on the process of citation for violation of FIFRA: files supporting citations, the letters of citation themselves, all responses by each manufacturer to such citations, follow-up action by PRD.
7. Files and data on the recall process: general procedure for recall and the file in each case where recall was employed. Each recall file should include all actions by the manufacturer, all supervision by PRD, quantity and location of the product recalled, and memoranda which indicate the effectiveness or completeness of the recall action.
8. Access to the binder or file containing the basic instructions on pesticide regulation, specifically the “PR Division Memorandum” numbered series and any other memoranda on poicy or administration which have been circulated to the entire Division or its sub-divisions,
9. Files and data on the Pesticides Documentation Bulletin Surrey now being conducted by the Statistical Reporting Service, Special Surveys Branch, including tabulation of responses to those surveys completed, and access to all complete raw survey forms.
10. Files and data on USDA responses to the recommendations of the General Accounting Oce reports of September 10, 1968 and February 20, 1968; USDA responses to the National Research Council report of May, 1969.
11. Files and data on any intra- or inter-departmental committees or study groups which may have made recommendations concerning pesticide regulation.
12. Files and data on the Interdepartmental Committee on Pesticides and its working group, together with minutes of all meetings and all recommendations made at such meetings.
A description of the filing system in use and a list of files.
14. Please give us a list of specific reports which cannot be made available under the Freedom of Information Act.
NB: Where it is impractical to provide a xerox copy of data or files, the Task Force asks simply for access to original files.
JULY 2, 1969.
(Copy of letter hand-delivered to Dr. Hays on 7-2–69) Dr. H. W. HAYES, Director, Pesticide Regulation Division, Agricultural Rescarch Service, Depart.
ment of Agriculture, Washington, D.C. DEAR DR. HAYES: As required day before yesterday. I would like to examine file folders containing all registration materials regarding product No. 201-136, the Shell Vapona No-pestrip, excluding only the product formula as proprietary information. Sincerely,
JOE TOM EASLEY,
U.S. DEPARTMENT OF AGRICULTURE,
Washington, D.C., July 7, 1969.
DEAR MR. EASLEY: This is in reply to your letter of July 2, 1969, requesting permission to examine file folders containing all registration material regarding product number 201-136, the Shell Vapona “No-Pest Strip,” excluding only the product formula as proprietary information.
Regulations in the U.S. Department of Agriculture, 7 CFR 1.4 (a) (1) and in the Agricultural Research Service, 7 CFR 370.13 exempt for disclosure such things as trade secrets, interagency memoranda in letters, investigatory files compiled for law enforcement purposes, scientific and technical data on products submitted by manufactures, data on research studies including both laboratory and field tests, and product formulation.
On the basis of the above information, it will not be possible for us to honor your request. Sincerely yours,
HARRY W. HAYS, Ph.D., Director.
U.S. DEPARTMENT OF AGRICULTURE,
Washington, D.C., July 23, 1969.
DEAR MR. EASLEY: This has reference to the list of requests for material to review, numbering 14 separate items, presented to the Agricultural Research Service when you and Mr. Nevans reported to the office of Mr. Nathaniel E. Kossack, Inspector General, on July 2, 1969.
Also on that day, in a meeting with you and Mr. Nevans and Dr. Hays, Director, Pesticides Regulations Division, we reviewed your request and found that many items were broad in scope, with general coverage to the extent that we could not definitely determine what was desired. We proposed that you meet with Dr. Hays and his two Assistants, Mr. Miller and Mr. Alford, and identify areas that would be desirable review in line ith your objectives. It was felt that this approach would more adequately provide information that would be useful to you.
We have been attempting to obtain clarification on many of your requests but due to their broad coverage specific responses have not been possible. We have, as you recall, specifically covered your request for review of File No. 201-36, the Shell Vapona "No-Pest Strip.” Also, specific written response has been made to your request for unlimited freedom in interviewing any employee in the Pesticides Regulations Division, without any type clearance.
I understand that you would like to have immediate written response to your total initial requests presented on July 2. Our response refers to the items by number in sequence of the request.
Items 1 through 7. These items all contain information that is restricted and are not available for public review. Certain of these files do contain information that is not proprietary and would be available for review if separated from the basic file. However, our staff and work schedule is such that this cannot be done on a cash basis. Therefore, it is necessary that the entire file be restricted.
Item 8. Generally the files included in this area are available for your review'.
Item 9. The Economic Research Service and the National Agricultural Library each have bulletins containing this type information. We suggest you contact these agencies for information desired.
Item 10. USDA responses to the recommendations of the General Accounting Office Reports of February 20 and September 10, 1968, are available for your review. USDA has not to date made a response to the National Research Council on the May 1969 report.
Items 11 and 12. This information is restricted and cannot be made available for your review.
Item 13. A description of this system will be provided.
Item 14. You request a list of specific reports that cannot be made available under the Freedom of Information Act. We believe the restricted subjects are adequately covered under Title 7, Chapter III, Subpart B, of the Combined Federal Regulations. Therefore, we have not attempted to prepare such list.
The Agricultural Research Service wishes to cooperate with you and Mr. Nevans in providing information that can be useful in completing the objectives of your project. At the same time we know you recognize that certain records cannot be disclosed without impairing the rights of privacy or important operations of the Government. These must be protected from disclosure.
We are continuing a careful review of your total request and if we are able to make additional information available to you we will do so promptly when it is cleared.
Dr. Hayes and I will be available to discuss with you any phases of your request and our response, if desired. Sincerely,
F. R. MANGHAM, Deputy Administrator.
U.S. DEPARTMENT OF AGRICULTURE,
AGRICULTURAL RESEARCH SERVICE,
Washington, D.C., November 17, 1969. Mr. HARRISON WELLFORD, Coordinator, Student Study Group on USDA, Center for Study of Responsive
Lavo, Washington, D.O. DEAR MR . WELLFORD: This has reference to your letter dated August 15, 1963, appealing the decision dated July 23, 1969, by Deputy Administrator F. R. Mangham, which denied your request for access to certain files and documents located in the Pesticides Regulation Division of this Service. Your appeal is made under provisions provided for by 7 CFR 370.15.