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"The doctrine, wherever applicable, does not require merely the initiation of prescribed administrative procedures. It is one of exhausting them, that is, of pursuing them to their appropriate conclusion and, correlatively, of awaiting their final outcome before seeking judicial intervention.

"The very purpose of providing either an exclusive or an initial and preliminary administrative determination is to secure the administrative judgment either, in the one case, in substitution for judicial decision or, in the other, as foundation for or perchance to make unnecessary later judicial proceedings. Where Congress has clearly commanded that administrative judgment be taken initially or exclusively, the courts have no lawful function to anticipate the administrative decision with their own, whether or not when it has been rendered they may intervene either in presumed accordance with Congress' will or because, for constitutional reasons, its will to exclude them has been exerted in an invalid manner. To do this not only would contravene the will of Congress as a matter of restricting or deferring judicial action. It would nullify the congressional objects in providing the administrative determination.

The District Court for the District of Columbia has already dismissed an early action under 5 U.S.C. § 552 (a) (3) for just such a failure of administrative remedies in Roger S. Randy v. Commissioner, United States Immigration and Naturalization Service, Civil Action No. 2239-67 (December 7, 1967) (A copy of the Court's judgment and order is attached hereto as Appendix "C"."

In the present case, it is apparent that the Department of Health, Education and Welfare has established rules "in accordance with" which a member of the public may obtain a final administrative determination of whether specific identifiable agency records will be made available to him under the Act. It is equally clear that plaintiff has thus far deliberately ignored the provisions in these rules for adminstrative appeal. Since administrative remedies validy established by regulations must be exhausted, plaintiff's action is pre-mature as to the third class of records described and defendant's motion to dismiss or, in the alternative, for summary judgment should be granted.

PLAINTIFF IS NOT ENTITLED TO INJUNCTIVE RELIEF

As demonstrated above, plaintiff's action is moot as to two classes of records and pre-mature as to the third. Not only has plaintiff clearly failed to demonstrate a probability of success on the merits which is required to obtain a preliminary injunction, but also the record now before the Court is totally devoid of any evidence of irreparable injury or any other prerequisite of injunctive relief. See Virginia Petroleum Assoc. v. FPC, 259 F. 2d 921 (D.C. Cir. 1958).

It is clear from a reading of plaintiff's Complaint, Motion for Injunction, and Affidavit that her action rests not upon any supposed right to preliminary relief to avoid irreparable injury but upon a desire of plaintiff to secure an immediate hearing on the ultimate merits of her complaint. The merits of plaintiff's complaint, in view of the mootness of two of her claims and the pre-maturity of the third, reduce basicly to the position that the Food and Drug Administration should be enjoined because it did not process her request as "promptly" as plaintiff desired.

As the Affidavits of Dorothy Koegler, Catherine Stahl and Ernest McCarter which are filed herewith demonstrate, plaintiff's requests were processed and a response mailed in a time period of slightly more than two weeks although the agency received 65,536 pieces of mail in February, 1968, and the staff of four to which inquiries such as plaintiff's are initially directed received over 2,000 pieces of mail that month. There can be no doubt that plaintiff's requests were processed promptly indeed in view of the relative correspondence workload and available staff. Moreover, plaintiff certainly cannot now complain of any present administrative delay with regard to the third class of records which she described in her request because, as noted before, she has made no effort to secure an administrative review of the initial administrative determination as to this class as allowed by the pertinent Department of Health, Education and Welfare regulations or, alternatively, to furnish a more specific description of the records desired. Under the circumstances, plaintiff has totally failed to demonstrate any right to injunctive relief and her "Motion for Injunction" should be denied.

• The administrative remedies available in the Randy action were those provided by the Department of Justice Regulations, 32 F.R. 9662 (July 4, 1967), which include a right to appeal an initial administrative determination to the Attorney General.

9. Tobacco Institute, et al. v. Federal Trade Commission, et al., Civil Action No. 3035-67, U.S. District Court for the District of Columbia. Plaintiff sought the names and responses of all individuals who responded to an FTC survey questionnaire. The court granted plaintiff's request with certain exceptions. The order of the court follows:

10. Kovic v. Gardner, Civil Action No. 2008-67, U.S. District Court for the District of Columbia. Plaintiff sought disability claim title and audiograph tape of a hearing concerning a social security claimant. Dismissed on December 29, 1967.

11. Bandy v. Immigration and Naturalization Service, Civil Action No. 2239-67, U.S. District Court for the District of Columbia. Plaintiff, a jail prisoner, sought disclosure of the current address of his alien wife. Case dismissed on December 12, 1967.

In the United States District Court for the District of Columbia

Civil Action No. 3035-67

THE TOBACCO INSTITUTE, ET AL., PLAINTIFFS

v.

FEDERAL TRADE COMMISSION, ET AL., DEFENDANTS

ORDER

This matter having come before the Court on plaintiffs' motion for summary judgment to require defendants to make available to plaintiffs various items relating to a Federal Trade Commission survey referred to in June 30, 1967, Report to Congress of the Federal Trade Commission pursuant to the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. 1331, and defendants' crossmotion for summary judgment, and the Court having considered the pleadings, affidavits, and memoranda of points and authorities filed herein and having heard argument of counsel, it is this 11th day of April, 1968.

ORDERED AND ADJUDGED that:

(1) the plaintiffs' motion for summary judgment be, and it is hereby, granted to the extent that defendants are ordered to make available to plaintiffs the names and responses of all individuals who responded to the Federal Trade Commission's April 1967 questionnaire survey, except as otherwise provided in paragraph three herein, since disclosure of such information is required by the provisions of 5 U.S.C. 552;

(2) the defendants' motion for summary judgment be, and it is hereby, granted to the extent that defendants are not required to make available to plaintiffs the list of recipients of the questionnaire sent by the Federal Trade Commission in April 1967 to various persons and organizations, since such information is exempted from disclosure by virtue of the provisions of 5 U.S.C. 552 (b) (6) ;

(3) the defendants' motion for summary judgment be, and it is hereby, granted to the extent that the defendants are not required to make available to plaintiffs the names and responses of any respondent to the Federal Trade Commission's questionnaire sent in April 1967 for which confidential treatment was expressly requested when the responses were initially submitted to the Commission, since such information is exempted from disclosure by virtue of the provisions of 5 U.S.C. 552 (b) (4).

Consent as to Form.

B. PENDING CASES

/S/

United States District Judge.

ROBERT N. SAYLER,
Attorney for Plaintiffs.

Attorney for Defendants.

1. Cuneo v. McNamara, Civil Action No. 1826-67, U.S. District Court for the District of Columbia. Plaintiff seeks disclosure of the Department of Defense Contract Audit Manual.

2. Aeromotor, Inc. v. Department of Labor, Civil Action No. 43250, U.S. District Court for the Eastern District of Pennsylvania. Plaintiff seeks disclosure of the "compensation" file on a deceased Government employee. The case was listed for trial on October 6, 1967. No opinion has yet been rendered.

SUBCOMMITTEE QUESTIONNAIRE

On January 30, 1968, Senator Edward V. Long, chairman of the Subcommittee on Administrative Practice and Procedure, sent the following letter to selected Federal agencies (Civil Aeronautics Board, Federal Communications Commission, Federal Power Commission, Federal Trade Commission, Food and Drug Administration, National Labor Relations Board, and Securities and Exchange Commission):

SENATE SUBCOMMITTEE ON ADMINISTRATIVE PRACTICE AND PROCEDURE

JANUARY 30, 1968.

DEAR MR. CHAIRMAN: On July 4, 1967, the Freedom of Information Act became the law of the land. The Senate Subcommittee on Administrative Practice and Procedure, pursuant to its jurisdictional responsibility for continuing oversight of this legislation, is attempting to survey all of the major regulatory agencies to determine the effectiveness of this Freedom of Information Act. Accordingly, would appreciate answers to the following:

(1) Please submit a list of information, records, or other documents which your agency has made available as a result of the Freedom of Information Act.

(2) Please submit a list of all information, records, or other documents which your agency has not made available since the enactment of the Freedom of Information Act, where the Freedom of Information Act was cited as the statutory reason for withholding the information, records, or other documents. Where possible, please cite the appropriate exemption (s) in each

case.

(3) Pleast furnish the subcommittee with two copies of any implementation regulations promulgated by your agency pursuant to the Freedom of Information Act. Additionally, please furnish two copies of any agency opinions in which this act is cited.

Please submit this information to Mr. Benny L. Kass, assistant counsel of the subcommittee staff, in room 3214 New Senate Office Building, no later than February 29, 1968.

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Chairman, Subcommittee on Administrative Practice and Procedure, Committee on the Judiciary, U.S. Senate, Washington, D.C.

(Attention of Mr. Benny L. Kass, Assistant Counsel.)

DEAR MR. CHAIRMAN: In response to your letter of January 30, there are submitted below answers to your inquiries concerning the Civil Aeronautics Board's implementation of the Freedom of Information Act.

(1) Please submit a list of information, records, or other documents which your agency has made available as a result of the Freedom of Information Act. Answer. The material which is generally available by the Board is listed in appendix A to part 310 of the Board's procedural regulations. Copies of part

92-089-68- -3

310, which is one of the regulations issued by the Board to implement the Freedom of Information Act, are supplied in response to item (3) below. While most of the material listed in appendix A was made available to the public generally before the Freedom of Information Act became effective, there were certain exceptions or qualifications, as described below:

Civil Aeronautics Board Manual.-In compliance with 5 U.S.C. 552(a) (2)(C) the Board now displays in its public reference room a copy of all of those portions of the Civil Aeronautics Board Manual that affect the public. This was not done before the Freedom of Information Act became effective although a person might request and receive permission to inspect individual issuances in the manual.

Transcripts of conferences between the Civil Aeronautics Board and other persons. Before the effectiveness of the Freedom of Information Act, these transcripts were available only to "interested" persons. This qualification does not now apply.

Forms used in dealing with the public.-The Board now maintains, for use of the public, a single list describing all forms used in dealing with the public, together with the forms themselves. While the basic information was previously available, it had not been assembled in this convenient form.

Minutes of the Civil Aeronautics Board.-Before the Freedom of Information Act became effective, the Board's minutes were available only to persons properly and directly concerned with the subject thereof. This qualification does not now apply.

Opinions of General Counsel.-The Board now displays in its public reference room copies of opinions of its General Counsel which are contained in numerous letters prepared over the years. An index of these opinions is also displayed. The Board did not do this before the Freedom of Information Act became effective, although response would be given to an inquirer as to individual matters of interest to him.

Public Index. With the effectiveness of the Freedom of Information Act there has been prepared, and maintained for the public in our public reference room, an index of materials available to the public.

(2) Pleast submit a list of all information, records, or other documents which your agency has not made available since the enactment of the Freedom of Information Act, where the Freedom of Information Act was cited as the statutory reason for withholding the information, records, or other documents. Where possible, please cite the appropriate exemption (s) in each case.

Answer. In appendix B to part 310 of its procedural regulations the Board has listed types of records generally not available for inspection. The examples are listed according to the applicable subsections of the Freedom of Information Act.

Since the Freedom of Information Act has been effective, our records show that there have been five instances where records have not been made available in response to requests therefor. In none of these cases was an appeal taken to the Board's Executive Director or the Board itself pursuant to the appeal provisions of the enclosed part 310. Two of these cases involved requests for material from Board investigative files and the material requested was considered to be exempt from disclosure under 5 U.S.C. 552(b) (7). The other three cases involved information received from air carriers under circumstances where the information was considered to be privileged and exempt from disclosure under 5 U.S.C. 552 (b) (4).

In addition to these five cases there was one instance where the staff initially denied a request to inspect a record but where, following an appeal to the Board's Exeutive Director, the record was made available.

(3) Please furnish the subcommittee with two copies of any implementation regulations promulgated by your agency pursuant to the Freedom of Information Act. Additionally, please furnish two copies of any agency opinions in which this act is cited.

Answer. There are attached two copies of each of the following:

Part 310 of the Board's procedural regulations, "Inspection and Copying of Board Opinions, Orders, and Records."

Part 384 of the Board's organization regulations, "Statement of Organization, Delegation of Authority, and Availability of Records and Information." Part 385 of the Board's organization regulations, "Delegations and Review of Action under Delegation; Non-Hearing Matters."

Part 389 of the Board's organization regulations, "Fees and Charges for Special Services." This part prescribes the fees for obtaining copies of Board records.

In response to the request for copies of any agency opinions in which the Freedom of Information Act is cited, there are enclosed two copies of order E-25802, denying a motion of the International Air Transport Association to withhold certain data from public disclosure.

If there is further information we can supply, we should be pleased to attempt to do so.

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PART 310-INSPECTION AND COPYING OF BOARD OPINIONS, ORDERS, AND RECORDS The Freedom of Information Act, Public Law 90-23 (5 U.S.C. 552(a) (2), (3), and (4)), requires that the Board make available for inspection and copying (or sale) all final orders and opinions (including dissenting and concurring opinions), statements of policy and interpretations not published in the Federal Register, administrative staff manuals and instructions to staff that affect a member of the public, a public index to the above, identifiable Board records as requested, and records of the final votes of each Board member in every Board proceeding. Part 310 contains provisions providing how, where, and in what manner requests to inspect or copy Board materials and records shall be made, and how denials of such requests shall be appealed within the Board. Two appendixes to part 310 catalog, but do not purport to describe completely, those Board records which are available to the public, and those which are exempted by the act from public availability.

In response to a notice issued on February 10, 1967, by the Board's Secretary inviting comments, views, or suggestions on any facets of the Freedom of Information Act which the Board should consider in designing its procedures of compliance, several comments from the public were submitted. These have been considered by the Board in establishing part 310.

Since this regulation is a rule of agency practice and procedure, notice and public procedure hereon are not required. The Board finds that the rule should be made effective July 4, 1967, in order that the Board may be in full compliance with the Freedom of Information Act on its effective date.

Accordngly, the Board hereby adopts a new part 310 of its procedural regulations (14 CFR, part 310), effective July 4, 1967, to read as follows:

PART 310-INSPECTION AND COPYING OF BOARD OPINIONS, ORDERS, AND RECORDS Sec.

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Authority: The provisions of this Part 310 are issued under sec. 204 (a), Federal Aviation Act of 1958, 72 Stat. 743; 49 U.S.C. 1324; Freedom of Information Act, 81 Stat. 54; 5 U.S.C. 552.

§ 310.1 Purpose.

This regulation is published pursuant to Public Law 90-23, §§ (a) (2), (3), (4), 5 U.S.C. 552(a) (2),(3),(4), and describes the manner in which Board opinions,

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