ELR Citation: ELR 20160
No(s). 73-1443 (D.C. Cir. Jan 21, 1974)

Exemption 5 of the Freedom of Information Act protects from disclosure two staff summaries of factual evidence from the cancellation hearing record that the EPA Administrator used as aids in making his decision to cancel all registrations for the use of DDT under the Federal Insecticide, Fungicide, and Rodenticide Act. The basic purpose of Exemption 5 is to protect the deliberative and policymaking process from the inhibiting effects of disclosure. The court finds the EPA v. Mink principle, that factual materials must be disclosed while deliberative materials need not be revealed, inadequate to resolve the issue in this case, it rules that the summaries although factual in nature, constitute part of the deliberative process and as such are protected under Exemption 5. The court points out that the two summaries contained no evidence or factual material that was not presented at the hearing and thus made part of the public record, and notes that a different result might well have been reached had the documents been based on factual evidence not already in the public domain and available to the plaintiff.

Counsel for Plaintiff
Robert L. Ackerly
Charles A. O'Connor III
Sellers, Conner & Cuneo
1625 K Street, NW
Washington, DC 20006

Counsel for Defendant
Stephen F. Eilperin
Walter H. Fleischer
Department of Justice
Washington, DC 20530

Harold H. Titus Jr. U.S. Attorney
John A. Terry
Robert S. Rankin, Jr. Asst. U.S. Attorneys
U.S. Courthouse
3rd and Constitution Ave.
Washington, DC 20001