Plainly, the Commission has neither granted nor denied plaintiff's request as to the third class of records, but has merely requested a more particularized description in order to identify the specific records desired.*

Moreover, even if plaintiff considered the initial administrative determination of Miss Koegler to be a denial, she could have appealed any way presently appeal this initial administrative determination "in accordance with" the published rules of the Department of Health, Education and Welfare governing such requests for information.

The Rules of the Department of Health, Education and Welfare provide with regard to review of such initial administrative determinations under the Act as follows:

***** A person whose request has been denied may initiate a review by filing a request for review within 30 days of the date of the denial of the request. **** Requests for review by an operating agency head shall be addressed to the head of the agency. ***

"The request for review shall include a capy of the written request and the denial. ***

“Review shall be considered on the basis of the written record including any written argument submitted by the requester. * * *

*** Decisions on view shall be in writing. If the decision is in favor of the requester, the decision shall order records made available to the requester as provided in the decision.

**** The decision, if adverse to the requester, shall briefly state the reasons for the decision, and shall be promptly communicated to the requester and shall constitute final action of the Department. * * *

*** Adverse decisions pursuant to this subpart may be reviewed by the courts as provided in subsection (a) (3) of the Act." [§§ 5.81 through 5.85, Exhibit “A” to Koegler Affidavit.]"

These regulations were promulgated specifically to carry out the direction of Congress in 5 U.S.C. § 552 that the agencies publish “. . . rules stating the time, place, . . . and procedure to be followed..." by members of the public who wish to have Department of Health, Education and Welfare records made available under 5 US.C. § 522 (a) (3).

Congress clearly contemplated that the rules promulgated by the agencies to implement this provision would include a provision for administrative review. The House Report explains that ". . . if a request for information is denied by an agency subordinate the person making the request is entitled to prompt review by the head of the agency." (H. Rept. No. 1497, 89th Cong., 2d Sess., p. 9.) Moreover, plaintiff has specifically recognized in her letter to the Food and Drug Administration that her request is subject to administrative processing pursuant to such rules (ee Exhibits 1 and 2 to Complaint and Exhibits "B" and "C" to Koegler Affidavit), but she has thus far declined to seek any administrative review of Miss Koegler's initial determination although the rules specifically

allow such a review.

In circumstances such as this, the Supreme Court has made the applicability of the doctrine of exhaustion unequivocally clear. In Aircraft & Diesel Corp. v. Hirach, 331 U.S. 752 (1947), the Court, in affirming a district court dismissal of an action for failure to exhaust administrative remedies, held (331 U.S. at 767):

When extensive research is required to identify the particular documents involved, a request for an "Identifiable record" under the Act has not been made. See S. Rept. No. 813, 89th Cong., 1st Sess., p. 8, which states that the ". records must be identifiable by the person requesting them, and H. Rept. No. 1497, 89th Cong., 2nd Sess., p. 9, which provides that ". persons requesting records must provide a reasonable descrip tion enabling Government employees to locate the requested material. "See also, Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act, p. 24, and House Hearings on H.R. 5012, p. 61 wherein Chairman John E. Moss of the House Subcommittee on Foreign Operations and Government Information commented with regard to a substantially identical House version of the bill:

"[W]e certainly intend that this be reasonable, the Government not be put to any heavy cost or extra cost in compiling specialized information, that which is available conveniently. We are not asking here that there be a requirement imposed upon the agencies and Departments that they go in and compile exhaustive data for a person who might just be curious.

The Commissioner of the Food and Drug Administration as the head of an operating unit of the Department of Health, Education, and Welfare has delegated his authority to review initial administrative determinations with regard to access to agency records to the Chief, Press Relations Staff, Office of Assistant Commissioner for Education and Information. (Koegler Affidavit, Par. 7 and Exhibit "E" thereto.)

"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).

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.

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

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."