permits an alternative pedagogical technique: students may be assigned to defend each position in class activities using a format resembling a Senate hearing or Cabinet meeting. This seems particularly useful in demonstrating that each position is internally consistent but based on different premises. These class activities should develop, in addition to knowledge and sensitivity to the issue, a personal commitment by the students to the position which they judge to be best.

ABSTRACT OF "THE PEOPLE'S RIGHT TO KNOW: THE ISSUES INVOLVED IN GOVERNMENT SUPPRESSION OF INFORMATION" (OR SOME SUCH TITLE) AUTHOR-Dr. W. Barnett Pearce, assistant professor of speech and journalism, University of North Dakota; M.A. and Ph.D from Ohio University; member Speech Communication Association, International Communication Asociation; published articles in Speech Monographs, Public Opinion Quarterly, Journal of the American Forensics Association, Western Speech, Free Spech Yearbook: 1970, and others; presented papers at conventions of the Speech Communication Association (International Communication Association, Central States Speech Association and the Association for Education in Journalism; as an undergraduate, member of the 1965 national championship debating team (which is relevant to my presenting pro and con "cases" herein).

Chapter I: Introduction

OUTLINE

This chapter will introduce the notion of the public's right to know along with some of my opinions about the issue which are in large measure the reason for writing the book. These include an analysis of the relationship between the right to know and democracy, freedom of speech and decisionmaking procedures in American government; documentation of the fact that the government has-whether appropriately or not-suppressed and distorted information about public affairs; and my distaste for the way discussion of these issues usually run. The theme of the latter is that the discussions usually rely on vague appeals to trust specific other people or on appeals for a consensus of distrust for other people generally rather than on the basis of rational argument. And when argument is used, the experience is usually futile because the positions advocated are oblique to one anotherthe specific arguments are internally consistent, but the conclusions are diametrically opposed. Thus the function of this book is to provide intelligent readers a summary of the cases presented for and against government suppression of information, with particular attention to the so-called "Pentagon Papers" case because it provided a clear-cut confrontation of perspectives, so that they may evaluate positions articulated by various spokesmen in the appropriate context and come to a personal decision about the matter. Chapter II: An Analysis of The Issues

This chapter will be comprised of my "on Fooling the People . . ." article, revised, brought up to date and perhaps lengthened. The major thrust of the article, which is the contrasting of two mutually exclusive, logically consistent schools of thought, will be unchanged.

Chapter III: Advocates for Discretionary Suppression of Information

This chapter will include annotated excerpts of various materials favoring information suppression in specific instances. These materials will include the briefs submitted by the prosecution (the government) to the courts in an attempt to halt publication of the Pentagon Papers by The Times and the Post, congressional debates and hearings regarding relevant legislation (such as the Freedom of Information Act) and other relevant documents, such as speeches and articles supporting various suppressions. The annotations will summarize the argument of the selections and relate them to the positions described in Chapter II.

Chapter IV: Advocates against Discretionary Suppression of Information

This chapter will be similar to Chapter III except that the selections included here will argue against suppression. Annotations will function similarily.

Chapter V: Decisions about Discretionary Suppression of Information

This chapter will include various documents reflecting considered decisions on the basis the arguments like those presented above. These will include court actions regarding the Pentagon Papers, the congress' action regarding the Freedom of Information Bill, etc.

Chapter VI: The Enduring Problem of the People's Right to Know

This chapter will orient readers to a continuing struggle between the public's need to know and the government's right to act in secrecy, which will continue to be marked by periods of disinterest punctuated by spectacular acts such as the printing of the Pentagon Papers, the U-2 incident or the Bay of Pigs Invasion. Using the procedures described for analyzing arguments in Chapter II and for making decisions along lines described in Chapter V, the author will provide readers with case-studies, both real and hypothetical, in which they may try their argumentative and decision-making powers.

Target. Classes in speech, journalism, political science; the educated, politically aware public (with appropriate promotion, this book can reach a broad non-classroom audience).

Length.-125 pages, paper-back.

Publication date.-Early 1972.

[From Sowing the Wind: Meat, Pesticides, and the Public Interest,
Grossman Press, 1971]

(By Harrison Wellford)

FREEDOM OF SUPPRESSION: PESTICIDES AND OFFICIAL SECRECY

...

"It shall be the policy of this Department . . . to make its records available to the public to the maximum extent consistent with the national welfare and the rights of individual citizens. This means that, with certain exceptions, the records of the Department are freely available for public inspection."U.S. Department of Agriculture statement in the Code of Federal Regulations. 7 CFR 1.1 (Jan. 1, 1969).

"The information in our files. is prepared for us by Government personnel . . . It is not made available to any person outside the Government, ercent for the few documents specified which have been made available to the firm regulated as part of the regulatory profess."-Affidavit of Dr. George Irving. Administrator, Agricultural Research Service, USDA, April 23, 1970 in Wellford v. Hardin. (emphasis added)

In Washington's regulatory agencies, information, especially timely information, is the currency of power. The fact is illustrated in the reply of a leading Washington lawyer when asked how he prevailed on behalf of his clients: "I get my information a few hours ahead of the rest." The industry lobbyist derives his influence from his superior intelligence apparatus. From routine visits to an agency and leaks from carefully cultivated contacts, he anticipates agency action and turns it to his advantage. By contrast, most citizens learn about an agency's plans only at their public stage, when a decision or proposal is announced in the Federal Register or to the press. At this point, the opportunity for influence by the public is often very limited. It is at the stage of inner council discussions, of draft reports, and interim choices by an agency's lower echelons that the real decisions are often made.

The advantages of privileged access were illustrated by Shell Chemical Company's successful infiltration of the Pesticide Regulation Division in the Sixties. On January 22, 1963, the Shell Chemical Company applied to the Pesticide Regulation Division for permission to sell a new household pesticide. the No Pest Strip. It was a plastic ribbon encased in a gold cardboard cage and impregnated with DDVP, (also known as Vapona) an organophosphate insecticide. When hung from the ceiling of one's home, it promised to emit DDVP vapor in amounts sufficient to kill flies for up to three months. Shell's application went to the desk of Dr. Thomas von Sumter, a pharmaIcologist in PRD, who examined its label to see if it would be safe to use as directed. He decided that the No Pest Strip with its proposed label was not

safe and in February, he informed Shell that to obtain approval, the label must include the word Poison, with a skull and crossbones.*

These facts-that Shell had proposed a new pesticide for home use, that it killed flies through continuous pollution of the atmosphere of the home, and that PRD had initially denied Shell permission to market it-were not public information. In fact, few scientists outside the government and no consumer groups had heard of the No Pest Strip.

Shell responded to Sumter's denial by dispatching several representatives to Washington on March 6 to see Dr. John S. Leary, then chief of PRD's pharmacology section. After talks with Shell, Dr. Leary overruled Sumter and withdrew PRD's objection. On March 7, he issued registration no. 201-136 to the No Pest Strip, which was then widely sold throughout the United States.1

In 1964 and 1965, PRD received complaints from the Public Health Service and California health officials who objected to the continuous exposure of people to a potentially hazardous pesticide where convenience, rather than health, dictates its use." There was special concern that the Shell Vapona No Pest Strip was a respiratory hazard to infants and elderly persons and that it could deposit residues on food prepared in the home. In November 1965, an ad hoc committee of the Public Health Service voted 6 to 2 to oppose continued registration of the Vapona strips. In October 1966, one year later, Dr. Hays, administrator of PRD belatedly responded to these complaints by appointing a committee of medical experts to review vaporized pesticides. A key document considered by the committee was a six page memo from Dr. John Leary to Hays which discounted the Public Health Service report and urged continued registration of the strips. Leary's advice reportedly prevailed, despite the fact that during this period, Nov. 14, 1966 to be exact, he had announced his intention to resign to accept a position with Shell Chemical Company. The No Pest Strip went on to become the nation's largest selling pesticide consumer product.

Hays may have been further influenced by two other advisors closely linked to Shell. Dr. Mitchell Zavon, a toxicologist, was a paid advisor to Hays white simultaneously serving as a paid consultant to Shell and chairman of a key committee of the National Agricultural Chemical Association, which promotes the interests of pesticide makers. Dr. Roy Hansberry, a Shell executive from Modesto, California, was a member of a special PRD committee for evaluating registration procedures, including safety protocols for proposed products. Both Zavon and Hansberry had helped supervise the safety testing of the No Pest Strip before registration. Among the results they submitted to PRD was a finding that vapona vapor did not leave residues on food, a finding later contradicted by other analysts.5

All of the proceedings regarding the safety of the No Pest Strip were veiled from public view. The Public Health Service Ad Hoc Committee Report was never made public. No minutes were kept by Dr. Hays' committee of experts. No further opinion was solicited by outside scientists. PRD still refused as of April 1971 to make the safety data in its No Pest file available for independent review. Even if information about the No Pest Strip, especially the doubts of public health officials about its safety were available, Shell's sympathizers were so entrenched in the agency that any protest from the public would probably have been futile.

As this case shows, the federal pesticide agency enjoys great discretionary power over the programs its administers. The Federal Insecticide, Fungicide and Rodenticide Act which directs pesticide control officials is basically a blueprint which sketches the agency's structure and states its goals. It leaves individual officials a wide freedom of choice in applying these goals to concrete cases. Under the agency's legal structure, they can go one way or

* Deficiencies in Administration of Federal Insecticide. Fungicide, and Rodenticide Act. Hearings before a Subcommittee of the Committee on Government Operations, House of Representatives, 91st Cong., 1st Sess., May 1, June 24, 1969.

1 Ibid.

2 The scientists were concerned that there had been no tests to indicate the hazards of long-term chronic inhalation of DDVP vapors.

3 Ibid.

4 Ibid.

Ibid.

another: they can delay registration of a pesticide by requesting additional tests for safety or accept the company's safety assurances without scrutiny; they can apply the effectiveness criteria narrowly (the pesticide need only show that it kills the target insect) or broadly (the pesticide in killing the target insect, must not kill so many beneficial insects that it reduces yield); they can decide which portion of the law to enforce or not to enforce; they can decide to recall a dangerous pesticide immediately or allow a company to sell all products already in marketing channels if it promises not to produce any more."

In terms of impact on the public, the power not to act is often greater than the power to act. For example, PRD waited 20 years after passage of FIFRA to use its power to suspend pesticides found imminently hazardous to public health. This behavior, as Professor Kenneth Culp Davis points out, inaction decisions, the choice to do nothing or to do nothing now, are ten to twenty times as frequent as action decisions in regulatory agencies:

"Discretion is exercised not merely in final dispositions of cases or problems but in each interim step; and interim choices are far more numerous than the final ones. Discretion is not limited to substantive choices but extends to procedures, methods, forms, timing, degrees of emphasis, and many other subsidiary factors." 7

These facts, the bureaucrat's freedom to choose and the value of inside information in helping outsiders influence that choice, are the cornerstones of the lobbyists profession in Washington. For the special interests which form an agency's regulatory constituency, information gathering has become a science. In the case of the chemical industry in USDA and food and drug manufacturers in FDA, lobbyists have been able to develop intelligence networks which rival the CIA in efficiency, if not in size. The stakes the high. If a lobbyist learns of impending administrative action against his client, he can give him time to prepare for the change or he may be able to arrange that the action is not taken at all. If he succeeds, often only he, his client, and a small number of bureaucrats know that the action was ever considered in the first place. Access also tells him which official is friendly and which is not, and guides him in pressing for the ouster of officials judged unsympathetic or unreasonable.

As a result of pressure from regulated interest, many agencies have developed an information policy with a double standard-one for citizens and one for special interest groups. In the Department of Agriculture, the chemical industry is treated in accordance with the principle that, "with certain exceptions, the records of the Department are freely available for public inspection." For the average citizen, however, the principle is turned on its head, and officials guard information with all the hauteur of a citizen above suspicion. As Dr. George Irving. Administrator of the Agricultural Research Service candidly states: "The information in our files . . . is prepared for use by Government personnel . . . It is not made available to any person outside the Government, except for the few documents specified . .

998

The double standard reflects the pattern of preferential access which lobbyists, trade associations such as National Agricultural Chemical Association, and corporations such as Shell have established in the Pesticide Regulation Division over the years. They develop institutions of privileged access such as advisory councils, cultivate the agency's key officials with countless dinners, conventions, and awards," and often succeed in cajoling, compromising or intimidating enough agency personnel to give them entry to the early decision process long before its public surfacing.

This interlocking chain of influence which includes an agency's regulatory clientele, its allies in the agency, and sympathizers on key congressional committees has often been called a subgovernment. The impact of its superior access to information has been described by Nicholas Johnson, who as administrator of the Maritime Administration and later a commissioner of the FCC, has matched wits with Washington's most entrenched subgovernments:

See discussion of recall in "The Enforcement Labyrinth."

Kenneth Culp Davis. Discretionary Justice, Louisiana State University Press. 1969. Affidavit of Dr. George Irving. Administrator. Agricultural Research Service, USDA, in Wellford v. Hardin, U.S. District Court, D.C.. Civil No. 740-70, August 5, 1970. See "The Forgotten Man" for awards to meat inspection officials.

"10

"On those rare occasions when pro-consumer action is proposed in an agency, the subgovernment moves in to block it. With its superior intelligencegathering apparatus, leaks, and regular agency watching, members of the subgovernment can anticipate potential agency action that is either adverse to their interests, or that can be turned to their advantage. Calls are made, visits are arranged, studies are done and released, Congressmen are made to be interested, the full page ads appear. Who is surprised any longer to have a lobbyist come to his office to discuss the contents of a staff document the Commissioners have not yet seen-or that is supposedly under confidential consideration? This is how things work in Washington-the point is that the public has no one to represent their interests in this swamp." The relationship between free access to information and responsible government is very direct. Excessive and discriminatory secrecy by federal agencies seriously blocks the citizens understanding and ability to participate in government. It was with these truths in mind that Congress passed the Freedom of Information Act (FOIA) in 1966. According to a 1967 Attorney General's Memorandum, Congress intended that "disclosure be the general rule, not the exception and that individuals have equal rights of access; that the burden be on the Government to justify the withholding of a document, not on the person who requests it; that individuals improperly denied access to documents have a right to seek injunctive relief in the courts, that there be a change in Government policy and attitude." "

The FOIA has not lived up to this broad promise. One problem is that the act expects of public officials an obedience to the unenforceable. If a public officer ignores the act, the citizen must engage the agency in court, the only recourse afforded by the act. Those who can afford legal challenge are those special interests who need the FOIA least of all. Examination of court records establish this point. In the first two years of FOIA, 40 cases were brought under the act. Thirty-seven of these involved corporations or private parties seeking information for some private claim or benefit. Only 3 cases involved a demand by the public at large for information. Most surprising of all, no member of the media, which should be the prime beneficiary of FOIA, had initiated a single court action under the act. In practice, therefore, the attitudes of agency personnel determined whether FOIA was to be a pathway or roadblock for citizen access.

12

The broad discretion in the act has allowed each agency to create its own "common law" in interpreting it. In doing so, they have developed a maze of confusing and contradictory regulations. Information which is claimed to be exempt from disclosure in one agency is freely given in another (for example, records of advisory council meetings—USDA-no, National Highway Safety Bureau-yes). In some agencies all requests must be in writing and all interviews cleared in advance, and strict records of all interviews required in others information is freely given over the phone in an informal way.

No agency has so successfully forged the FOIA into a shield against the citizen's right to know as the Department of Agriculture. For two years a Task Force sponsored by the Center for Study of Responsive Law tested the defenses of secrecy in the Department and found them formidable. This struggle is a rueful lesson for the citizen who seeks to find out what his government is doing. Discussed below are the strategies of evasion employed by USDA and the Pesticide Regulation Division in concealing the facts about federal regulation of pesticides.

At first the Task Force anticipated little difficulty in carrying out its study. Before beginning, its director requested and was granted an interview with Secretary of Agriculture Clifford Hardin in June 1969 to explain the study's purposes. Anticipating an informal talk with the Secretary in his office, he was surprised on the day of the appointment when one of Hardin's aides directed him to a large conference room down the hall. There, to his astonishment, he found fifteen of the Department's highest ranking notables grimly

10 Statement of Nicholas Johnson. Public Counsel Corporation: Hearings before the Subcommittee on Administrative Practice and Procedures of the Committee on the Judiciary. U.S. Senate, 91st Cong., 2nd Sess., July 1970. p. 19 FF.

11 Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act (June 1967).

12 "The People's Right to Know", Congressional Record, No. 139, September 3, 1969.