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DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE-FOOD AND DRUG ADMINISTRATION Ackerley v. Ley, 420 F. 2d 1336 (D.C. Cir. 1969).

DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE-SOCIAL SECURITY

ADMINISTRATION Ginsburg v. Richardson, 436 F.2d 1146 (3 Cir. 1971). Tietze v. Richardson, 342 F. Supp. 610 (S.D. Texas 1972).

ILLINOIS DEPARTMENT OF PUBLIC AID

Rodriguez v. Swank, 318 F. Supp. 289 (N.D. III. 1970).

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

Charles River Park "A" Inc. v. Department of Housing and Urban Development,

F. Supp. (D.D.C. 1973) Civ. A. No. 1861–72. Philadelphia Newspapers Inc. v. Department of Housing and Urban Develop

ment, 343 F. Supp. 1176 (E.D. Pennsylvania 1972).

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT—FEDERAL HOUSING

ADMINISTRATION

Tennessean Newspaper, Ino. v. Federal Housing Administration, 464 F. 2d 657 (6 Cir. 1972).

DEPARTMENT OF THE INTERIOR

National Parks and Conservation Association v. Morton, 351 F. Supp. 404 (D.D.C. 1972).

DEPARTMENT OF JUSTICE

Hogg v. United States, 428 F. 2d 274 (6th Cir. 1970), cert. den. 401 U.S. 910

(1971). Weisburg v. Department of Justice, F. 2d (D.C. Oir. 1973) Civ. A. No. 71-1026.

DEPARTMENT OF JUSTICE-FEDERAL BUREAU OF INVESTIGATION

Stern v. Richardson, F. Supp (D.D.C. 1973) Civ. A. No. 179-73.

OFFICE OF DIRECTOR OF IMMIGRATION AND NATURALIZATION SERVICES

Cowles Communications, Inc. v. Department of Justice,-F, Supp.—, (N.D. Cal. (1971), 39 LW 2621.

U.S. PENITENTIARY

Cook v. Willingham, 400 F. 2d 1243 (10th Cir. 1972).

U.S. REFORMATORY

Harbolt v. Alldredgc, 464 F. 2d 1243 (10th Cir. 1972).

DEPARTMENT OF LABOR

Cooney v. Sun Shipbuilding & Drydock Co., 288 F. Supp. 708 (E.D. Pa. 1968).
Stokes v. Hodgson, 374 F. Supp. 1371 (N.D. Ga. 1972).
Weckster v. Shultz, 32A F. Supp. 1084 (D.D.C. 1971).
Stokes v. Brennan, 476 F. 2d 699 (5 Cir. 1973).

NATIONAL ADVISORY COMMISSION ON CIVIL DISORDERS

Skolnick v. Kerner, 435 F. 2d 694 (7 Cir. 1970).

NATIONAL COMMISSION ON CAUSES AND PREVENTION OF VIOLENCE

Skolnick v. Campbell, 454 F. 2d 531 (7 Cir. 1971).

NATIONAL LABOR RELATIONS BOARD

Barceloneta Shoe Corp. v. Compton, 271 F. Supp. 591 (D. Puerto Rico, 1967). Clement Brothers Company v. National Labor Relations Board, 282 F. Supp. 540

(N.D. Ga. 1968). Getman v. NLRB, 450 F. 2d 670 (D.C. Cir. 1971), app'l, for stay of order den.

U.S., 40 LW 2070 (1971). National Labor Relations Board v. Clemont Brothers Company, Inc., 407 F. 2d

1027 (5th Cir. 1969). Polymers, Inc. v. National Labor Relations Board, 414 F. 2d 999 (2d Cir. 1969),

cert, den. 396 U.S. 1010 (1970). Sears Roebuok and Co. v. National Labor Relations Board, 433 F 20 210 (6 Cir.

1970)'. Sears Roebuck and Co. v. National Labor Relations Board, 346 F. Supp. 751 (D.C.C. 1972).

NATIONAL ARCHIVES AND RECORD SERVICE

Nichols v. United States, 325 F. Supp. 130 (D. Kan. 1971).

NATIONAL ENDOWMENT FOR HUMANITIES

Wu v. National Endowment for Humanitics, 460 F. 2d 1030 (5th Cir. 1972).

NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION

- F. 2d

Ditlow v. Volpe, F. Supp. (D.D.C. 1973) Civ. A. No. 2370–72 Rev'd.

(D.C. Cir. 1974) Civ, A. No. 73–1984.

OFFICE OF SCIENCE AND TECHNOLOGY

Soucie v. David, 448 F. 2d 1067 (D.C. Cir. 1971).

PATENT OFFICE

Irons v. Schu 465 F. 2d 608 (D.C. Cir. 1972).
Misegades v. Schuyler, 328 F. Supp 619 (E.D. Virginia 1971).
Sears v. Gottschalk, 357 F. Supp 1327 (E.D. Virginia 1973).
Irons v. Schuyler, 465 F. 2d 608 (D.C. Cir. 1972).

POSTAL SERVICE

Institute For Weight Control, Inc. v. Klasscn, 348 F. Supp. 1304 (D.N.J. 1972).

PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND THE ADMINISTRATION OF

JUSTICE

Skolnich v. Parsons, 397 F.2d 523 (7th Cir. 1968).

RENEGOTIATION BOARD

Astro Communications Laboratory v. Renegotiation Board, 466 F. 2d 345 (D.C.

Cir. 1972). Rev'd.—U.S. (1974) Civ. A. No. 72-822. Bannercraft Clothing Co., Inc. v. Renegotiation Board, 466 F. 2d 345 (D.C. Cir

1972), Rev'd.-U.S.-(1974) Civ. A. No. 72-822. American Manufacturing Company of Texas v. The Renegotiation Board,-F.

Supp.—(D.D.C. 1971), Civil No. 1246–71.
David B. Lilly Corp. v. Renegotiation Board, 466 F. 2d 345 (D.C. Cir. 1972),

Rev'd-U.S.-(1974) Civ. A. No. 72–822.
Fisher v. Renegotiation Board,-F. 2d-(D.C. Cir. 1972), 41 LW 2263.

nman Aircraft Engineering Corp. v. Renegotiation Board, 425 F. 2d 578 (D.C. Cir. 1970). Grumman Aircraft Enginecring Corp. v. Renegotiation Board, 482 F. 2d 710 (D.C. Cir. 1973).

SECURITIES AND EXCHANGE COMMISSION

Frankel v. S.E.C., 460 F. 2d 813 (2d Cir. 1972).
LaMorte v. Mansfield, 438 F. 2d 448 (2d Cir. 1971).
M. A. Schapiro & Co., Inc. v. Securities Exchange Com'n., 339 F. Supp. 467 D.D.C.

(1972). Commercial Envelopc Manufacturing Co. v. S.E.C., 450 F. 2d 342 (2 Cir. 1971).

SELECTIVE SERVICE SYSTEM

Martin v. Neuschel, 396 F. 2d 759 (3d Cir. 1968).
Reinoehl v. Hershey, 426 F. 2d 815 (9th Cir. 1970).
Tuchinsky v. Selective Service System, 294 F. Supp. 803 (N.D. III. 1969), aff'd.

418 F. 2d 155 (7th Cir. 1969).

DEPARTMENT OF TRANSPORTATION

Evans v. Department of Transportation, 446 F. 2d 821 (5th Cir. 1971).

AIRCRAFT ACCIDENT SAFETY BOARD

Therault v. United Statcs,-F. Supp.—(C.D. Cal. 1972), Civil No. 71-2384-AAH.

FEDERAL AVIATION ADMINISTRATION

Robertson v. Shaffcr,-F. Supp.--(D.D.C. 1972), Civil No. 1970–71.

U.S. COAST GUARD

Miller v. Smith, 292 F. Supp. 55 (S.D.N.Y. 1968).

DEPARTMENT OF TREASURY

Legal Aid Sociсty of Alameda Co. v. Schultz, 349 F. Supp. 771 (N.D. Col. 1972). Richardson v. United States, 465 F. 2d 844 (3rd Cir. 1972).

BUREAU OF CUSTOMS

City of Concord v. Ambrose, 333 F. Supp. 958 (N.D. Col. 1971).
Verrazzano Trading Corp. v. United States, 349 F. Supp. 1401 (Cust. Ct. 1972)

INTERNAL REVENUE SERVICE

Field v. Internal Revenue Scrvice,-F. Supp.—(D.D.C. 1973), Civil No. 841-72.
Hawkes v. Internal Revenue Service, 467 F. 2d 787 (6th Cir. 1972).
Long v. Internal Revenue Service, 339 F. Supp. 1266 (W.D. Wash. 1971).
Long v. U.S. Internal Revenuc Service, 349 F. Supp. 871 (W.D. Wash. 1972).
Shakespeare Co. v. United States, 389 F. 2d 772 (Ct. Cl. 1968), cert. den. 400 F. 2d

820 (1970). Talbott v. United States, 49 F.R.1). 68 (E.D. Ky. 1969). Williams v. Internal Revenue Service, 345 F. Supp. 591 (D. Del. 1972). Tax Analysts and Advocates v. Internal Revenue Service, 362 F. Supp. 1298 (D.D.C. 1973).

VETERANS' ADMINISTRATION Consumer Union of United States, Inc. v. Veterans' Administration, 301 F. Supp.

796 (S.D.N.Y. 1969), appeal dismissed as moot, 39 LW 2491.

INTRODUCTION TO CASE SUMMARIES Section 3 of the Administrative Procedure Act of 1946 contained the first general statutory provision providing for public disclosure of executive agency information. Labeled "Public Information" section of the Administrative Procedure Act for the purpose of making information available to the public, the original Act (5 U.S.C. 1002 [1964]) fell short of this objective and was frequently referred to as the statutory authority for withholding information, rather than disclosing information.

Amending the original section 3, the new Freedom of Information Act, P.L. 89_487, 80 Stat. 250 (1966), 5 U.S.C. section 552 (1970), was signed by President Lyndon B. Johnson on July 4, 1966 and went into effect on July 1, 1967. This law required the executive agencies to make available to any member of the public all of their identifiable records except those involving matters which are within nine specifically stated exemptions. 5 U.S.C. sec. 552(b)(1)-(9).

One of the more important features of the Freedom of Information Act is the provision providing for judicial review for the unlawful retention of Government information from the public. (Sec. 552(a) (3)). Under this provision, the district courts have the authority to enjoin the continuous withholding of records if it is found to be improper. These court proceedings are required to "be de novo ... in order ... [to) prevent (them) from becoming meaningless judicial sanctioning of agency discretion.” (S. Rept. No. 813, 89th Cong. 1st Sess. 8 [1965]). The court is further authorized to give complaints filed under this Act precedence over other actions on the docket with an additional proviso that they be heard "at the earliest practical date and expedited in every way.” (S. Rept., supra, at 8).

The summaries in this report represent the disposition of those cases which for the most part are reflective of interpretations and definitive opinions relative to applicable sections of the Act. Only those portions of each case dealing with the Freedom of Information Act have been so summarized.

PAUL S. WALLACE,

DANIEL HILL ZAFREN, Legislative Attorneys, Congressional Research Service, Library of Congrc88.

[Note: The Subcommittee wishes to express its appreciation to Messrs. Wallace and Zafren and Ms. Helen Ward for their efforts in preparing this section of the Sourcebook.)

CASE SUMMARIES

Ackerly v. Ley
420 F. 2d 1336 (D.C. Cir. 1969)

Agency:

Food and Drug Administration (Commissioner of Food and Drugs in HEW). Record(s) involved:

On proposal by Commissioner to bar carbon tetrachloride from interstate

commerce as hazardous substance, documents relative to degree and nature

of hazard contained in proposal. Sections of the Act:

Sec. 552(b)(5)-Exemption for inter- and intra-agency memoranda.

Sec. 552(b) (6)–Exemption for personnel, medical and similar files. Judgment:

Order of District Court denying request of petitioner invalidated and sent

back for reconsideration. Appellant's complaint in the District Court sought equitable relief, in the form of compelled disclosure of documents, against appellee Commissioner of

Food and Drugs in the United States Department of Health, Education and Welfare.

The Commissioner gave notice in the Federal Register of a proposal on his part to bar from inter-state commerce, as a "banned hazardous substance” within the purview of the Federal Hazardous Substances Act carbon tetrachloride and mixtures containing it.

Appellant, by letter sought permission "to review and inspect and/or copy all of the records" in the possession of the Commissioner "which relate in any way to the degree or nature of the hazard" referred to in the Commissioner's proposal.

After reviewing the documents in camera, the District Court rendered summary judgment for the Commissioner.

HELD: Vacated and remanded for further consideration.

Whereas District Court only stated that the documents were internal records based on medical reports secured in confidential capacity, it did not detail the nature of the documents nor give reference to their exemptions enumerated in the Freedom of Information Act.

The fact that the information sought under the Freedom of Information Act might be ferreted out by intuition and diligent search by persons seeking information is no reason for failure to disclose or refusal to compel disclosure.

The District Court's ruling was not susceptible of an appellate review which would generate confidence in either a reversal or an affirmance.

American Mail Line, Ltd. v. Gulick

411 F.2d 696 (D.C. Cir. 1969) Agency:

Maritime Subsidy Board for Department of Commerce Record (8) involved:

Memorandum prepared by agency staff which provided the basis for ruling

and requiring the petitioners to refund approximately $3,300,000 in subsidy

payments. Section of the Act:

Sec. 552(b) (5)-Exemption for inter- and intra-agency memoranda. Judgment:

For petitioner. Action by steamship operators under Freedom of Information Act brought after the Maritime Subsidy Board for the Department of Commerce had required the operators to refund approximately $3,300,000 in subsidy payments.

The plaintiffs contend that in an attempt to formulate a meaningful agreement in their petition for reconsideration by the Board order, they filed with the Board an "application to inspect records" and in the alternative a renewed request for the reasons for and a summary of the evidence upon which the Board based its ruling. The Board stated that its ruling was based upon a 31 page memorandum from which they clipped the last 5 pages and recorded it as its own findings in the matter and sent to appellants. Upon final refusal to produce the memorandum in whole, the appellants filed suit in the district court under the Freedom of Information Act (5 U.S.C. sec. 552 (Supp. III, 1965–1967)). The U.S. District Court for the District of Columbia granted defendant's motion for summary judgment and plaintiffs appealed.

Appellants contend that the April 11 decision, transmitted by the letter of April 12, constituted an order to them and the Act specifically states that “the agency must disclose to any person upon request all final opinions. . . as well as orders. made in the adjudication of cases ; (5 U.S.C. sec. 552(a) (2) (A)).

Appellees contend that it is exempt from discovery because it is an “intraagency memorandum (s) ... which would not be available by law to a party other than an agency in litigation with the agency” under 5 U.S.C. sec. 552 (b) (5).

HELD: Reversed and remanded.

"The appellee failed to meet the burden requiring it to show that its April ruling did not have immediate operative effect. Appellants were ordered to refund approximately $3,300,000 and this order was stayed only pending the Board's decision on reconsideration. We therefore conclude that the Board's ruling of April 11

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