public usefulness of a contrary policy was seen a few months ago when an internal FDA evaluation report was made public. 26 The Department of Labor also misused this "intra-agency" éxemption by denying public disclosure of their interpretations of the Walsh Healy Act, made in 1936, even though that Act has been amended several times since and the public need for this information is essential if any determination is to be made as how the law has been administered over the last thirty-three years. 3. Delay. A typical tactic is to delay replying for several weeks to a request for information and then reply that it was not sufficiently specific. If the agency does not permit the inquirer initial access to learn what specific information the agency possesses, he has no choice but to make a more general request. All agencies know that one level of secrecy can lead to more exquisite levels of secrecy. To complicate the problems of the researcher, the organization or filing of the information possessed by the agency is not revealed. Consequently, the citizen is often exposed to a charge of non-specificity. Yet the more knowledgeable and fraternally received lobbyists, on the other hand, have no such problems. 27 The Department of Agriculture, especially its Pesticide Regulations Division, has perfected this dismal science to such a degree that it may uproot itself by the excess of its success." 28 The Department of the Interior (DOI) employed the delay technique through the person of the new Assistant Secretary of Interior, Carl Klein. He developed a hamstringing system of centralized appointments and a centralized room for interviews to be conducted under the watchful eye of his monitors. In the initial three weeks of the study, the Department repeatedly denied information by this monitoring device and by cancellation or delay of scheduled meetings. An appeal to Herbert Klein, Director of Communications, and Secretary Hickel was necessary to instruct Mr. Klein in his duties to the public. He withdrew his edicts promptly. But other delays emerged. For example, a memorandum of the Federal Water Pollution Control Administration's [FWPCA] assistant commissioner for enforcement, which outlined the enforceability of water quality standards, was released only after a 10-14 day delay following the initial request and an appeal to the DOI's information officer. The reason given for the delay was the assertion that this document was still in the working paper stage; however, the paper had already been completed and circulated. Since any work of man can always be perfected, the designa 28 See INVESTIGATIVE REPORT ON THE DEPARTMENT OF AGRICULTURE, a study conducted in the summer of 1969 by the Center for the Study of Responsive Law; to be published in early 1970. tion of “working paper" can have no clear and provable limits, which is another way of saying that the agency which exploits this technique becomes a law unto itself. A circumvention closely related to the "working paper" tactic is the statement that information is still not verified or is in incomplete form. The FWPCA gave the latter as the reason for refusing, following a ten day delay, a student request to see reports on the status of water pollution abatement programs at twenty federal installations. There is a written demand pending to see the information in whatever form it exists, since the agency's laxity in compiling this information is a self-serving and illegal basis for denial of access. This request for the status reports on twenty installations was made after FWPCA denied more detailed information about the entire problem on the ground that this general information would give the researcher a "warped impression." "29 A corollary of delay is to deny the interviewer access to his potential interviewees, hoping to deter the intended interview at best or to delay it at the least. Often an interview with a relevant agency official is the only way to obtain certain information. One student group probing the practices of Washington law firms sought to interview attorneys at the Antitrust Division of the Department of Justice and at the Federal Trade Commission. Assistant Attorney General Richard McClaren took nearly three months to reply to the request, and then denied it, citing no provision of the FOIA, but stating, "[f] or reasons we think should be apparent, it would not be appropriate for this Division to characterize or compare the performance... of attorneys who represent individuals or corporations with which the Division has official business." 30 It took the FTC four weeks to reply to a similar request, after debating the issue before the full commission and before Senator Kennedy's Subcommittee on Administrative Practice and Procedure. Permission was finally granted, but not until after the student had returned to her school and not without the requirement that all questions be submitted in writing beforehand.31 4. Commingling Technique. Further illustrations reflect the variety of denials. The water pollution study group wanted information concerning oil dumping. The Department of Defense (DOD) denied them information on the quantity of oil being pumped from the bilges of naval ships on the 29 At another time this same researcher was told, perhaps facetiously, that release of information would endanger Interior's relationship with the Department of Defense (DOD) "because DOD is finicky about releasing figures on total sewage." Presumably, the enemy could then rush back to its abacus and calculate the manpower strength of the base. Sewage from domestic military bases is a national security matter, according to FWPCA. It could coincidentally be a national pollution problem which is the basis of the reluctance. 30 Letter from Richard McClaren, Assistant Attorney General of the Antitrust Division of the Department of Justice, to Mark Green, Nov. 13, 1969. 31 The Boston Globe, Sept. 13, 1969, p. 8, col. 3. 537-870 O 74 28 grounds that this data would be included in a report which contained operational data relative to military characteristics and was therefore classified. The Defense Department made no claim that the specific information requested is itself classified or in any way exempt from the FOIA. The Pentagon is a past master of the “contamination technique"-take several batches of unclassified material that may prove embarrassing and mix them with other batches of classified information and the result is that the sum is entirely classified. Civilian agencies have been quick to deploy this technique. For example, the Department of Labor has claimed that all material in all Walsh Healy files is "investigatory" even when the particular requested material is non-investigatory in nature. Thus, the Department secures secrecy by its own commingling and subsequent refusal to sepa rate. 5. Disappearances, Fabrications and Favoritism. 32 a) More primitive responses emerge as an agency loses its last rationalizing props for withholding information. Relevant materials on pesticides in the Department of Agriculture 33 disappeared, on the action of a high official, after the students, with permission, began researching them at the Pesticides Regulations Library. 32 Statements of David Swoukin, Director of the Bureau of Labor Standards, and Lawrence Silberman, Solicitor of the Department of Labor, July 12, 1969. 33 There were literally hundreds of information denials which occurred this past summer yet which would be unwieldy to describe in detail in this article. Yet to get a sense of the pervasiveness of this denial policy, some of problems encountered at only the Department of Agriculture are listed below: a. Racial hiring charts for individual electric cooperatives financed by REA loans: although the REA's information office decided to give the information, the Department's Office of General Counsel removed it without telling REA. On appeal to the REA administrator, the charts were made available. b. The Farm Credit Administration's record on the recipients of FCA-approved loans. The FCA must approve loans of more than $100,000 made by federal land banks, and other large loans made by the production credit boards. The FCA has refused several times to reveal the names or locations of the recipients, or the size or terms of the loans. c. Minutes of meetings of the National Food Inspections Advisory Committee and the Poultry Advisory Committee. Denied. d. Minutes of meetings of the Citizens Advisory Committee on Civil Rights, whose members were private citizens. Denied. e. Audits done by the Department's Inspector General on various agencies. After all our requests for audits were routinely turned down, we asked to see summaries of some of the audit findings. This was refused. In one case, both the audited agency (the Federal Extension Service) and the state director whose program was under study (Dr. Marshall Hahn of VPI) gave us permission to see the OIG audit of extension programs in Virginia. Even so, the OIG refused. f. Copies of a proposal by the Department's Program Review and Evaluation Committee for a new system to keep track of civil rights progress. After the Department refused to give us the chart, we informally asked an administrator and got the chart immediately. g. Records of any action the Department has taken to correct problems pointed out by a number of groups-the U.S. Civil Rights Commission, the Department of b) Outright lies are not unknown. The National Highway Safety Bureau has denied any knowledge of preferential release to General Motors in late June, 1969 of an Army medical team report on offbase accidents involving servicemen in Europe; yet the report had been sent to General Motors privately. Since the company has recalled several million cars for a carbon monoxide hazard, it can be forgiven for its urgent interest in a medical report showing high carbon monoxide levels in the automobile crash victims' blood. But why not let all the people, including potential victims, know at the same time? The report was finally released in early September, 1969, over two months after the initial request and denial of its existence. The study of the Civil Aeronautics Board [CAB] took as one of its primary areas of concern the ways in which the Board and the airlines industry deal with or fail to deal with complaints from members of the public. At the onset, statistical information was requested, in writing, concerning the total number of complaints received by the CAB, the volume of complaints lodged against particular airlines, and the major categories and sources of complaints. The CAB refused to give this information on the grounds that it had inadequate personnel to keep any records of this sort. Not until the very end of the summer did we learn, from another source, that the Board had made detailed studies of precisely the kind of information requested. The CAB practiced an even more extreme deception. Early in the summer they were asked to supply the complaints received from the public and the responses of the Board. This request was denied on the ground that if the airlines learned the identities of the complaintants, they might take retaliatory actions against them. The CAB finally allowed the inquiring student to examine selected complaint files, provided that he agree not to record the names and addresses of the complaintants; this restriction made it impossible to correspond with them to gauge the effectiveness of any CAB response. Yet the study group later learned from the Senate Subcommittee on Administrative Practices and Procedures that it was standard CAB practice to forward all complaints from the public directly to the airlines involved. 34 Thus the agency, through Charles Kiefer, its execu Justice, private citizens, and the Department's own Inspector General and Citizens Advisory Committee on Civil Rights. Denied. h. All records of action the Pesticide Regulation Division (PRD) has taken in a number of areas: seizing unsafe pesticide products; recalling products from the market; issuing citations to manufacturers of unsafe pesticides; and recommending prosecution of pesticide manufacturers. Denied. i. Data that manufacturers submit to PRD when they have their products registered. The PRD claimed that all the information in the registration file is covered by the "trade secret" option, even though the specific product formula is contained in a brown envelope marked “confidential” and can be easily separated from the rest of the file. 34 Letter from Reuben Robertson to Charles Kiefer, Executive Director of the Civil Aeronautics Board, October 30, 1969; See N.Y. Times, Nov. 26, 1969, p. 59, col. 4. tive director, knowingly lied rather than grant citizen access to information relevant to legitimate study. The Food and Drug Administration, which has been more cooperative than some of the other agencies in releasing information to the study group, claimed through an official spokesman that it maintained no brand name list of beverages containing cyclamates. Such a list, however, had been used repeatedly to answer specific inquiries about specific brand names. On learning that the inquirer was part of the summer study group, the agency made the list available. This illustrates that whatever difficulty we were having, one can imagine the even greater difficulty of a citizen writing in from Kansas or Oregon. c) One classic, generic technique of preferential treatment is to compile the kinds of information that industry desires but decline to compile the information that a consumer or labor group could use. The Department of Interior compiles much information of use to the minerals industry but very little benefits consumers or workers. This agency had to be pushed and prodded to develop a report on the environmental depredations of the coal industry after half a century of such conditions, and then was reluctant to make the report public. Consumer-related information about federal oil policy, from quotas to offshore leases, has been most hard to elicit from Interior. The same imbalance prevailed for information concerning hazards in off-shore drilling. The clearest example of discriminatory information treatment involves the CAB. During the summer, numerous requests for basic statistical data were denied by the CAB on the grounds that it had inadequate staff and accordingly could not assemble such information or provide it for our study. Some of the records and statistics the CAB stated it does not bother to keep include the following: Speeches and personal appearances made by members of the CAB. Enforcement actions by the CAB's Bureau of Enforcement against Complaints charging racial discrimination by the airlines. - The number of initial decisions of CAB hearing examiners appealed to the Board in accordance with its regulations. - The number of interested parties seeking to intervene in CAB proceedings pursuant to its rules of practice. A typical facet of corporate favoritism is agency effort to avoid embarrassment of industry groups at the expense of public knowledge and safety. Late in the summer, we learned of a recent report by the CAB on |