waiting the Secretary's arrival. The quiet interview, it turned out, was regarded by USDA as a "visit of state." The Secretary appeared diffident and a little confused. It was difficult to hear his views because a covey of officious aides, notably the Inspector General Nathaniel Kossack, rushed to intercept all questions thrown his way. Secretary Hardin did graciously say that he expected the study to be "extremely valuable" in helping the Department assess its role in pesticide regulation, feeding the hungry, civil rights, meat inspection, and the other areas under investigation. He instructed the Inspector General to be the Task Force's liaison with the Department.

The Task Force was further reassured by a rather naive faith in the rights guaranteed by the Freedom of Information Act of 1967 (15 U.S. Code 552, 80 Revised Statutes 250). As discussed above this act purported to make disclosure of information the rule, with exceptions only in special categories such as defense secrets, trade secrets, intra-agency memoranda, and investigatory files. If an agency refused to divulge information illegally, the citizen could sue the agency and his suit would "take precedence on the docket over all other causes and expedited in every way."

...

This era of good feeling between the Task Force and the Department lasted just two days. On the third, Julian Houston, a Task Force member working on civil rights enforcement, was apprehended by one of Kossack's aides while waiting to interview an official in the Farmers Home Administration and taken directly to the office of the Inspector General. Kossack verbally charged Houston with "going through" the files in a USDA office. After a ten minute harangue, he abruptly dropped these charges and switched to a new tactic: hearty, avancular charm. It was all just a misunderstanding, he said; the whole matter was really the fault of a nervous secretary. Kossack ended this incredible conversation by offering Houston a job with USDA.

Nathaniel E. Kossack obviously took his job as "laison" very seriously. A former FBI agent, Kossack had come to USDA from the Department of Justice where he was the top civil servant in the Criminal Division (where Houston's stick-carrot treatment is a well-known interrogation tactic). Forced to resign in 1969 after a celebrated run-in with his new boss, Assistant Attorney General Will Wilson, Kossack was eager to prove himself in his new job. A tough cop with a deep suspicion of outsiders, Kossack saw his role as a watchdog to keep information from leaking out which might embassass the Secretary. USDA is one of the few departments with its own internal police force. The Office of Inspector General was established in 1962, in response to the Billie Sol Estes scandal. It performs highly confidential audits on all USDA activities and reports directly to the Secretary.

With Kossack in command, access proved to be a problem throughout USDA, but nowhere was the door shut tighter than in the Pesticide Regulation Division of the Agricultural Research Service. Secretary Hardin in the June meeting requested that the Task Force prepare written requests for all documents and give them to the Inspector General. Kossack would, in turn, gather the material. Responding to the Secretary's request, the major part of June was spent preparing requests for PRD files. Key information was in the registration and enforcement files which allowed one to evaluate the safety screening of new pesticides and the agency's success in removing dangerous pesticides from the market. By talking with a number of persons the Task Force determined that, of the files desired. only two parts of the files sought could properly be called exempt from disclosure under the Freedom of Information Act. The first was the manufacturer's formula for each pesticide, a trade secret under the Act: the second related to investigations of violations presently pending. The first presented no problem, for the formula was separated from other information and placed in an envelope marked "Confidential," which could be easily removed from the file folder. The Task Force expected, therefore, that most of the information it desired would be legally available.

The list was presented to Kossack in person on June 30, 1969. and began a long struggle which was ultimately to end in the federal courts in 1970 and 1971. Much of the day-to-day confrontation took place between Kossack, PRD officials and two Task Force members. Joe Tom Easley, a tall tireless Texan with an easy manner and a nimble wit, and Bernard Nevas, a Harvard

law student, the son of a wealthy, prominent New York lawyer, whose cool detachment and ironic style nicely balanced Easley's charm. One attribute they shared equally: the ability to ask and ask again.

After glancing over the list of information requests, Kossack immediately called in Deputy Administrator of the Agricultural Research Service, Frank A. Mangham. Mangham was told to "handle" the requests. Mangham whisked Easley and Nevas to his office and assured them that the information would be gathered as soon as possible. He then introduced Dr. Harry Hays, the head of PRD. Hays quickly glanced over the list, frowned and stated that he was sorry but he was not sure that any of the items could be provided. To Mangham, Hays expressed concern that the study would "disrupt" his operations. Mangham gently told Hays that the Secretary had favored the study and that Hays should cooperate as best he could. Hays reluctantly agreed to look over the list and make a careful determination on each item. He would, in the meantime, arrange a series of "briefings" with his staff so that the Task Force could learn how PRD went about its business. The briefings were to begin the following day.

The first briefings came off exactly as scheduled. Like most formal briefings, it was uniformative and contrived, enlivened only by some insistent questioning by Nevas and Easley. When they returned to PRD for the second of the series the following day, they were taken directly to Hays who curtly stated that there would be no more briefings and that he was denying access to everything on the list. When they protested and pointed to the Freedom of Information Act, he blithely said it "didn't apply." PRD, he said, had been "investigated enough." When we pressed him for more specific reasons for his blanket denial, he retorted, "I just don't think we can stand this probing into the files."

What were the secrets the Task Force had asked to see? Among other things it wanted to examine safety data submitted by pesticide manufacturers, accident records for specific pesticides, and enforcement data on pesticides found to be dangerous after already going on to the market. Hays withheld all of this. On a request to see what action PRD had taken against violators of the law, Hays said, "We are not going to let out minor violations of the Act (FIFRA). I don't think that is what the law requires." As the meeting ended, Hays gratuitously remarked that the Task Force would, of course, want to drop its study because there could not be an investigation without this information.

Rebuffed by Hays, the Task Force filed a second written request with Hay's superiors.

With industry lobbyists so frequently, freely, and conspicously visiting PRD staff, Dr. Hays could not deny interviews. However, he did attempt to limit the information from his staff by ordering them not to give away documents without his written approval, and to file a memorandum with him after any conversation with a member of the Task Force. This order was also secret but several PRD employees nonetheless angrily complained to Task Force members that they regarded the memo requirement as intimidation. It was also discriminatory, not applying to the visitors from industry. Many of the PRD employees interviewed were therefore very guarded in their remarks. One actually called in his secretary to take down an entire hour long interview in shorthand. Another employee at the close of an interview nervously asked to be reminded of the subjects discussed so he could "satisfy Hays that I didn't spill the beans on anything."

Hays also made sure he knew exactly whom the Task Force interviewed. All interviews were subject to clearance in advance by Hays, or one of his division chiefs.

Lowell Miller, Assistant Director of PRD for enforcement immediately dispensed with this requirement, giving carte blanche to see any Enforcement Branch personnel we chose. But Easley and Nevas were astonished when they first went in to "clear" appointments with Dr. Hays: one by one Dr. Hays personally telephoned the individuals they asked to see and made the appointments. The Director of an important and overworked agency apparently had nothing better to do than act as appointments secretary for a couple of visiting students. Mr. Alford, the head of the registration section was even less cooperative than his chief. While the latter at least made ap

pointments promptly, Mr. Alford always insisted on at least a day's delay. Many PRD employees interpreted these "personal" appointments as further intimidation-especially as neither industry representatives nor even the press required such clearance.

THE LIBRARY SAGA

Hays did not limit himself to refusing documents and intimidating employees. He also indulged in direct harassment in a series of events the Task Force came to call the Library Saga, an epic in three parts.

Part I. Given its inability to obtain PRD documents and its limited access to PRD staff, the Task Force determined to make diligent use of the PRD library, which contains a large collection of journals on entomology, and toxicology, as well as industry publications and some of the basic PRD documents which has been denied.

The library whose door opened onto PRD's main corridor, appeared to be available to the general public. When Easley asked the assistant librarian if he could examine the books, she granted permission without a second thought. He then spent several hours studying PRD's Inspector's Manual, the PRD Operating Manual, and a notebook of PR Memoranda, the last two items specified in the FOIA as available to the public but so far denied by Hays.

Returning to the library several days later, Nevas and Easley found these volumes missing from the shelves and asked the head librarian for them. She explained awkwardly that Hays had told her not to let them see the items and had ordered them removed-the Inspector's Manual to Enforcement Chief Miller's office, and the PR Memoranda to Registration Chief Alford's office. Nevas and Easley then walked down the hall to Miller's office and told him what had happened. Miller was dumbfounded. He called Hays and, after some argument, persuaded Hays to allow them to see the Inspector's Manual. Hays remained adamant on the PR Memoranda. (Dr. Irving, administrator of the Agricultural Research Service and Hay's superior, overruled him three weeks later, presumably because the violation of the FOIA in denying this item would have been too blatant.)

Part II. Shortly after this incident, Nevas and Easley returned to PRD to find further changes at the library. First of all, the library door which had formerly opened onto the corridor now stood closed with a hand-lettered sign tacked to it: "Enter through room—”, two doors down. Following this new sign, they passed through two offices, until they ran into the assistant librarian who explained that the PRD had instituted a new rule: all library visitors must be cleared with Dr. Hays. Nonetheless, she permitted Nevas and Easley to enter the library while she attempted to track down Dr. Hays.

After browsing a few minutes, Easley suddenly noticed that two large volumes published by Shell Chemical Company which he had examined earlier were now missing. Searching the shelves more carefully, they discovered that the library had been swept clean of all Shell publications, although the library had many books and reports from other pesticide manufacturers. Even more mysterious, all records of Shell publications had been removed from the card catalogue.

At this point, Dr. Hays came rushing in, flushed and obviously out of breath: "What are you doing here? May I help you?" Easley replied "Just browsing" and asked about the missing Shell manuals. Hays became flustered and stared intently at the shelves as if looking for the missing volumes. Apparently he had ordered the Shell publications removed because of the Task Force's interest in possible conflict-of-interest questions regarding PRD's handling of the Shell No Pest Strip. Finally, Nevas asked him if the new library entrance and producers were meant to shut them out. Hays replied, “No, just as long as you don't look in any of the files." (The answer was puzzling as there were no files kept in the library.) After staring at the shelves a moment longer, Hays suddenly rushed out of the room.

Part III. In early August, two other members of the Task Force, wishing to use a pesticides reference, asked Dr. Hays' secretary for permission to use the PRD library. She referred them to Mr. Alford, Chief of Registration. Although he had never met these students before, Mr. Alford was hostile from the start. He demanded angrily to know why they wanted to use the library and what they were doing looking into pesticides. After some argu

ment, he refused them permission to enter the library, adding however, that if they made a formal request for some specific item in the library, it "would be considered." Since despite all their troubles Nevas and Easley had never actually been denied access to the library, Mr. Alford's arbitrary refusal appeared to be pure harrassment.

THE PRD VS. TIME MAGAZINE

Perhaps the high point in PRD's comedy of evasions occurred towards the end of August, when relations with PRD were beginning to lose even surface civility. As part of a planned cover story on Ralph Nader, Time Magazine decided to do a profile on one of his "Raiders" in action. The magazine selected Joe Tom Easley of the pesticides team and assigned a reporter, Douglass Lea, to follow him around for several days.

On the second day, he had an interview scheduled with Enforcement Chief, Lowell Miller; he telephoned him, asking permission to bring Mr. Lea along. Mr. Miller readily agreed. When they arrived for the interview, however, Mr. Miller sheepishly informed them that Inspector General Kossack had forbidden him to admit reporters.

Easley and Lea went immediately to the Inspector General's office, where Lea and Kossack commenced a heated argument, with Lea making Miltonesque statements about freedom of the press and Kossack defending the vitrues of secrecy. Reminded that a Life reporter had conducted an identical study a month earlier,* Kossack replied that the USDA had instituted a new "policy" on reporters. To support his position, Kossack marched Easley and Lea down to the office of USDA Director of Information, Harold Lewis.

Lea then engaged Lewis in more debate over his discriminatory treatment, but Lewis remained adamant: policy did not permit reporters to accompany Task Force members in PRD, and that was that. As to who had instituted this "policy" and when, he refused to answer.

Perhaps the most revealing episode involving PRD's arbitrary information policy occurred nearly nine months later when the Task Force was finally granted access to the "master registration" card file,' an index to information regarding the registration of new pesticide uses. Polly Roberts, a Task Force member who joined the Task Force from the Massachusetts Audubon Society, visited PRD on March 5, 1970, excited at the prospect of seeing these "sensitive" files so long denied.

Dr. Hays met her and ushered her downstairs to the filing area, remarking en route (although he had never met her before) that her presence was an "unfortunate situation," and that to make the best of it, "the clerks and other personnel downstairs have been instructed not to answer any of your questions as such information would be beyond their expertise." He then introduced her to Mr. Bussey, chief of filing operations, who conducted her to the room containing the master files. To her amazement, these heretofore secret files contained the manufacturer's names and the brand names of pesticides, arranged in the chronological order by which products had been registered. That was all! Thinking there had been some mistake, she returned to Mr. Bussey's office. Following is the record of her conversation: ROBERTS: Do you have any records of non-agricultural pesticide use? (she was researching the use of pesticides around the home)

BUSSEY: No, such information is contained only in the jackets [folders on individual pesticides]. Why do you want to know all this? What do you want to do with it?

The Life interview produced another insight into Kossack's view of his watchdog role: Jack Newfield, in assignment from Life accompanied Julian Houston and Jim Fallows, two Task Force members. on an interviewing mission at the Farmers Home Administration. The interviewee. picked at random from a list of civil rights compliance officials in the Department, turned out to be extraordinarily timid, rambling, and (apparently) uninformed. His main point during the interview was how much his large family depended on his job. The interview was an embarrassing and untypical experience which all concerned decided to forget. Later Kossack indirectly chided us for "setting the Department up". The implication was that we had sought out an incompetent for the Newfield interview in order to discredit the Department. In fact, the man's terrified performance was probably caused by the close monitoring of interviews which Kossack had imposed.

ROBERTS: I want to know by what safety criteria certain pesticides have been registered.

BUSSEY: But why do you want to know?

ROBERTS: Because I am interested and the information is supposed to be public. I would like to see the jackets for certain pesticides.

BUSSEY: You don't seem to understand. Certain "public" information is really confidential.

ROBERTS: But I thought confidential information was kept in sealed envelopes in the jackets.

BUSSEY: The envelopes are not sealed.

ROBERTS: But they can still easily be removed, can't they?

BUSSEY: You don't seem to understand. The jackets contain company correspondence, which might refer to the confidential information. It would be too much work for our staff to read through all the correspondence to remove references to confidential information. (The "contamination" tacticintermixing exempt and non-exempt information in the same file-is a familiar "ploy" of government secrecy. A registration staff officer informed us that confidential information, outside the special envelope, is referred to only by code letters or numbers.)

ROBERTS: Well if we can't see the jackets, who can?

BUSSEY: Representatives of the manufacturers, and anyone else whom Dr. Hays approves. (emphasis added)

ROBERTS: Whom does Dr. Hays approve?

BUSSEY: That's up to him.

REMEDIES

Professor Kenneth Culp Davis, after surveying the patterns of official secrecy in the regulatory agencies, concluded:

"The goal should be to close the gap between what the agency and its staff know about its laws and policy and what an outsider can know. The gap can probably never be completed, closed but the effort should always continue."

99 13

In USDA, as the incidents above demonstrate, the gap is very wide and no effort is being made to close it.

The Freedom of Information Act was little help against the capricious secrecy of PRD's director, Harry Hays. Hays and his superiors in the Agricultural Research Service treated the exemptions from disclosure permitted by the Act as if they were taffy in a taffy pull. Listed below are their most common evasion tactics:

1. the "contamination technique": PRD takes items of unclassified material that may prove embarrassing and combines them with several items of classified information. Result: the whole sum is classified. PRD claimed that pesticide formulas were so intermixed with the safety data which must be filed by pesticide makers that the entire registration file must be closed. Independent scientists are, therefore, not permitted to judge the adequacy of the safety claims a manufacturer makes for his pesticide.

2. trade secrets: the formula of a pesticide, where it gives a company a competitive advantage, is properly exempt under the Act. PRD, however, applies the exemption to virtually all information which a company does not want disclosed. Correspondence between PRD and pesticide makers was denied because it might contain references to trade secrets. In fact, much of the information classified as trade secrets, including many pesticide formulas, is common knowledge within the industry. The only group not familiar with it is the public.

3. specificity: a typical tactic of many agencies is to delay replying to an information request for several weeks, then state that the request was not specific enough. USDA, for example, waited four months after we initially appealed Hay's refusals to tell the Task Force that its request was too general, in spite of the fact that it requested the Shell No Pest Strip file by its actual serial number. Because USDA will not make available its file indices, the requests had to be somewhat general.

4. search fees: even if the agency concedes that information is public, it may impose arbitrarily high fees for collecting it. USDA stated that it

13 Discretionary Justice, op. cit., p. 102.