Tobacco Documents Online

.• d a '6' IH E T C> B AC C Ca I N S'T II TUT E, O NC. 1776 K , STREET, NORTHWEST' WASHINGTON, D. C. 200'C76 296-8434 HO~RACE R.ItORN~EGAY' . PRESIDENT 6 EnCCNT1vE~~QIRECTQR: "Dr. Merlin K. Duval,, Jr. . Assistant Secretary for Health and Scientific Affairs Department of Health, Education :_ and Welfare Washington, D. C. 20201 ;.Dea.r Dr. Duval: `V ,The Tobacco Institutey Inc. appeals pursuant to Sections 5.80-5.85 of the Department's Regula- _ tions (45 C.F.,R. 09 5.8Q-5.8Z) the decision contained in the attachedd letter of'February 18, 1972, from Russell M. Roberts, Director, Public Affairs,, Department of' Health,, Education and Welfare, denying, disclosure of certain records sought by the Institute under the Public Information Act of 1966, 5 U.S.C. 0 552 ("the Act"'),. The ,:.Institutets original request for'these records is also attached. ., Records Sow:ght by the Institute The records sought by the Institute are referred to in the. 1972 Report of the Surgeon General entitled "'The Health Consequences of Smoking." Page xv of this Report,, iin~ discussing, the chapter' on r'Harm.fU:l Constituents of Cigarette Snoke,, "' refers to a "one-day conference held iniJune 1970'to review this area of knowledge and to discuss a draft report prepared in advance.'' Page 211 of the 1970'

Reportx referring to the Chapter in the Report on "Ha.rm.ftiil Constituents ~ . . ~ ~ ~ ~ ' ~ ~ ~ ~ ~r r,.~. ._...:. . .~ ~.~-.<~.:• -., .. . . . . . ....... ... -. . ~.a ' t° : further states : , of Cigarette Stinoke} "'Tliis repor..t attempts to surnarize the areas of' generall consensus reached in a special one-day conference of expertsn in this fie7ld' which met in 197,0, This is not. .to imply that there was unazlimous agreement in all statements contained herein." In these circumstances) aud' in viewi of' public import of questions relating, to any harm.ffla7l constituents of' cigarette smokey, he Institute requested'that all documents and records relating to jthis one-day conference be made publicly, available. Specifi.callyy, the following were:requested:. A copy _of ' the '`d±aft report prepared! in advance"' of' he_one-day conference held in June 1970 to consider the _c~uestion of harmful constituents of cigarette smoke. A copy of the transcript of that meeting or, if'a transcript is.unavailable.,.of "any untr,anscribed,tapes recording,the proceedings of that meeting. A copy of' any other document or record, other than ` those citedl on pages 220-226 of the Surgeon General"s 1972 Report., which was"considered during or which resulted from the June 1970 conference., not including any documents solely related to the adininistrative aspects of the conference. With respect to Item 3, Mr. Roberts' letter states that all documents that were considered!during the June 1970 conference are cited at pages 220-226 of.f the Surgeon Generas''s 1972 Report., and that the only

document resulting from the June 1970' conference is the final chapter ~ in the Surgeon General's 1972 Rieport, Mr. Roberts' letter denies the lrnstitute"s.request for Items 1 and 2 by claiming the records involved are exempt from disclosure under 5 U.S.C. 9, 55'2'(1b)1(5) of the entemption relating;-to~-"inter-agehcy of intra-agency The Records Requested in Items 1 and 2 Are Not. Within the Statutory Exemption. The denial of'the records requested in Items 1 and 2. mn the basis of' 5 U. S. C. 3 552 (b )(5 )., the only exemption relied' on. by Mr. -Robertsy is clearly in~ error. Nor iis there any other provision Act which justifies refusal to furnish the record&requested. It is now well established that this exemption does not apply to factual material, such as scientific reports,, which do not contain any information rel.ating, to policy deliberations by government personnel. As stated in Bristol-Myers Company v. F.T.C., F2d 935, 939 (D.C. Cir. 1970): .'!'The statute exempts ninter-agency or intra-agency-;, memorandums or letters which wou7ldt not be available by law to-a party other than an agency in litigation with the agency. ' 5 U. S'. C. § 552(b)1(5). 'This provis2on en- courages the free exchange of ideas among government po]iicy makers,, but it does not authorize an agency to throw a protective blanket over all information by casting it in the form of an internal memorandum. Purely factual reports and scientific studies cannot be cloaked in secrecy by arrlexemption desi rned to protect only "those internal working papers in which opinions are ex-oressed and policies formulated and recor~:ended.' (Emphasis supplied . Simi:larly., in Soucie v. David, 448 F2d 1067 (D.C. Cir. 1971! ),, it was held that a scientific report known as the GarFrin Report on the

Government's program for the development of a supersonic transport ai.rplane (,SST) was not covered by the statutory exemption. 2?he court stated: "Irn the present record, however, there is no evidence . to indicate that releasing the factual information in -'the Garwin Report will expose the decisional processes of the President or other executive officers with policy-making functions. Unless the Government introduces such evidence on remand., the factual information in the Report will not be protectedl by the exemption for internal cozmnunications.'r . . An examination of the chapter of~the.1972 ~Surgeon General's Report upon which the requested records were based shows that these , records relate largely to scientific and factual matters. Th chapter is inessence a scientific report on the present state of debate on factual and scientific issues, are recorded in the requested smoke. Nothing suggests that policy deliberations., rather than knowledge of' various allegedly harmflLl constituents of cigarette dncuments.-The fact that the participants were told that their of the exemption relied on by Mr. Roberts., and in any event wouldl deliberations would be confidential is irrelevant to the application not justify withholding of the requested records. The quoted 2. Assuming., , contrary to the Institute's contention, that the requested records reveal the decisional processes of'the govern- ment rather than purely factual information, the exemption contained iri 5 U. S. C, 552(b)(5) still doe s not apply'. American Mail Line Ltd. v. Gulick, 411 F2d 696 (,D.C., Cir. 19b9),, held that a document which the requested!information. precedents alone therefore clearly established the Institute's right

is properly within the scope of the internal memorandum exemption loses its exeinption status and' becomes a public record which must J)e disclo-sed if' it is publicly relied' upon as the basis for the agency's decision, The references to the requestedlrecordis quoted from the 1972 Surgeon General's Report therefore require disclosure 'because'they indi:cate that these records-were relied on as the basis for variious statements contained in the 1972' Report. The recent case of' Sterling, Drug, Inc. v. F.T'.C., 450 F.2d 698, 707' n.,171 (D.C. Cir. 1971), expands the doctrine of' Americsn- 1NSail to apply to documents that are in fact the basis of the agencyt s ? _.- decision even if' reliance is not publicly disclosed' as in American Mail and as in the present situation. Since a'"draft report prepared in advance"inevitably would, as a practical matter, have a strong, bearing on the conclusions of' aiconference held specifically to discuss the report, the Sterling case provides still further justi- -ficationifor disclosure of the requested records. 3. Even if' some of' the material contai:ned' in the requested records were entitled to the intra-agency exemption, the courts require that consideration be given to the possibility of deleting such material and disclosing the non-exempt portions. Sterling,Drug v. F'.T.C.,,, su ra at 704; Soucie v. David, sunra„ at 1078'. Based on the above judicial precedents,, the Department's C initial decision denying,the requested!records to the Institute was ~ in error. It is disturbing,, moreover, that the Department shoulid' seek y~w . .~

: to prevent the disclosure of documents dealing with medical andl scientific issues that have been the subject of intense pub3ic discuissiona and should do so by cla3:ming that the documents relate only to internal agency matters. . It is'clear that these records do not come within the . :....~. .11-',i.'.."...::~•-r i.... ,...v..--.. ...- ..... , . .. statutory exemption which was the only basis given for failure to disclose. The requested records therefore should be promptly ~ • - • ..--..~._ .. ,..._. _ . . furnished to the Institute as the Act requires. , Yours very tru:Ly. Horace Kornegay .~ . !`, r.i ..- : w 4 N A '14 Y '1