Departamento de Energía Ocultó Documentos Sobre Experimentos de C. P. Rhoads con Radiación en Humanos

Decisión y orden del Departamento de Energía de Estados Unidos con las cuales oculta documentos sobre experimentos con radiación del asesino Cornelius P. Rhoads

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Case No. VFA-0302, 26 DOE ¶ 80,201
 
July 11, 1997

DECISION AND ORDER
OF THE DEPARTMENT OF ENERGY

Appeal
Name of Petitioner: Pedro Aponte Vazquez
Date of Filing: June 16, 1997
Case Number: VFA-0302

On June 16, 1997, Pedro Aponte Vazquez (Aponte) filed an Appeal from a determination issued to him in response to a request for documents submitted under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the Department of Energy (DOE) in 10 C.F.R. Part 1004 and the Privacy Act, 5 U.S.C. § 552a, as implemented by the DOE in 10 C.F.R. Part 1008. The determination was issued on May 15, 1997 by DOE's Chicago Operations Office (DOE/CH). This Appeal, if granted, would require that DOE/CH perform another search for responsive documents.

I. Background
On August 30, 1995, Aponte filed a request with DOE's Office of the Secretary for "copies of documents regarding the medical, scientific, and experimental work of Dr. Cornelius Packard Rhoads for the U. S. Atomic Energy Commission (1945-1959)." Letter from Aponte to Hazel O'Leary, DOE (August 30, 1995). DOE's FOIA/Privacy Act Group (DOE/HQ) acknowledged receipt of the request on September 28, 1995, and searched the files of the History Division of the Office of the Executive Secretariat and the Coordination and Information Center (CIC) in Nevada. During the search, DOE/HQ learned that Dr. Rhoads(1) had been involved with cancer research at Memorial Hospital(2) in New York. DOE/HQ then transferred the request to DOE/CH to perform a further search because DOE/CH was responsible for the administration of contracts with MSK. On November 4, 1996, DOE/HQ issued a final determination, concluding that no responsive records were found at headquarters. Along with the letter, DOE/HQ enclosed a list of documents available at CIC. On November 14, 1996, DOE/CH issued a final determination stating that no records exist regarding Memorial Hospital in New York. Aponte responded to DOE/CH in writing, referring to mention of total body irradiation (TBI) (3) experiments at Memorial Hospital in the Final Report of the Advisory Committee on Human Radiation Experiments (October 1995) [hereinafter Final Report]. He also expanded his request to include "documents of any kind pertaining directly or indirectly to such scientific work, from 1945 to 1959, even if no evidence exists that Dr. Rhoads was involved in them in any fashion." Letter from Aponte to Group Manager, Acquisition and Assistance, DOE/CH (November 20, 1996).

On May 2, 1997, DOE/CH acknowledged receipt of Aponte's November 20, 1996 letter, and apologized for the delay in receiving his request. DOE/CH conducted a search of MSK contracts in its office, but could not find any documents relating to TBI. Letter from DOE/CH to Aponte (May 15, 1997). On June 16, 1997, Aponte filed this Appeal of DOE/CH's final determination.

II. Analysis
In responding to a request for information under the FOIA, it is well established that an agency must conduct a search reasonably calculated to uncover all relevant documents. Truitt v. Department of State, 897 F.2d 540, 542 (D.C. Cir. 1990) (Truitt). Accord Oglesby v. Department of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990); Master v. F.B.I., 926 F.Supp. 193, 196 (D.D.C. 1996) (Master). "The standard of reasonableness which we apply to agency search procedures does not require absolute exhaustion of the files; instead it requires a search reasonably calculated to uncover the sought materials." Miller v. Department of State, 779 F.2d 1378, 1384-85 (8th Cir. 1985) (Miller); accord Truitt, 897 F.2d at 542. We have not hesitated to remand a case where it is evident that the search conducted was in fact inadequate. See, e.g., Glen Milner, 17 DOE ¶ 80,132 (1988).

In reviewing the present Appeal, we first contacted DOE/CH to ascertain the scope of the search. The Contracts Division of DOE/CH promptly sent us copies of supporting documentation, including correspondence with the requester and internal memoranda relating to the searches performed. After a review of the file and conversations with employees at DOE/CH, it appears that the search focused on two areas: (1) current MSK research grants were reviewed for any responsive material, and (2) historical records were searched for responsive material relating to Memorial Hospital.

A. Search of Current MSK Research Grants
Two employees of DOE/CH were assigned to search the three active and one inactive MSK research grants currently administered by their office. They examined nine files of a 1986 MSK contract and found no reference to TBI, but admitted that they did not understand the technical jargon and had only perused the first few pages of each file. In addition, they did not know the meaning of TBI and were unable to locate the Final Report reference that Aponte submitted as evidence of TBI research at Memorial Hospital. Memorandum from David Ramirez (undated). We easily found the Final Report reference on the Office of Human Radiation Experiments (OHRE) web site, along with an entire chapter entitled "What is TBI?" Final Report, Chapter 8.(4) The employees readily admitted their lack of familiarity with the subject area, and referred the request to two scientists experienced with MSK research grants.
 
Both scientists in the Office of Energy Research (DOE/ER) stated that the current MSK research grants did not involve TBI. One wrote that the current grants were "non-existent during the period 1945 to 1959." Memorandum from Dr. Prem Srivastava, DOE/ER to David Ramirez (May 13, 1997). The oldest of the active grants could only be traced as far back as a parent grant initiated in 1977, many years after Memorial Hospital ceased to exist. Id. In addition, the Final Report explains that TBI research substantially decreased after the mid-1970s. Final Report, Chapter 8. Thus, we find that the scientists' statements are credible and their search was adequate.

B. Search for Historical Records of Memorial Hospital
Various groups in DOE/CH searched for records of Memorial Hospital, but found none. An employee of the Acquisition and Assistance Group was able to find a reference to two boxes containing files for Memorial Hospital, but these boxes were "closed out" in 1983 and destroyed in 1989. We contacted this group again to discuss the search and determine if any records from 1945 to 1959 might still exist. DOE/CH informed us that when files are no longer used on a regular basis, they are "closed out," or retired, and moved to an interim facility for destruction at the end of the retention period (six years and three months). An employee who uses the records storage facility told us that, although some records older than six years and three months do exist, the oldest records she has seen in the storage room are from the 1970s. Thus, it is highly likely that records of TBI research at Memorial Hospital from 1945 to 1959 were destroyed many years ago. DOE/CH believes, and we agree, that a search of the entire facility would not only be unreasonably burdensome, but would also be unlikely to locate any responsive material. See Lois Blanche Vaughan, 26 DOE ¶ 80,165 (1997) (unreasonable burden to require agency to search thousands of files for records that are not likely to exist); Nation Magazine v. U.S., 71 F.3d 885, 892 (D.C. Cir. 1995) (concurring with the district court's determination that a request to search 23 years of unindexed files would impose an unreasonable burden on an agency).

Therefore, we find that DOE/CH performed a search reasonably calculated to uncover material relating to TBI research at Memorial Hospital from 1945 to 1959. The office reviewed current grants with MSK, the successor to Memorial Hospital, and also looked for documents referring to Memorial Hospital during those years. Because DOE/CH has a policy of destroying unused documents after six years and three months, we find no reason to expect DOE/CH to retain Memorial Hospital records for over 40 years. Accordingly, this Appeal is denied.

It Is Therefore Ordered That:
(1) The Appeal filed by Pedro Aponte Vazquez on June 16, 1997, OHA Case Number VFA-0302, is hereby denied.
(2) This is a final Order of the Department of Energy from which any aggrieved party may seek judicial review pursuant to the provisions of 5 U.S.C. § 552 (a) (4) (B). Judicial review may be sought in the district in which the requester resides or has a principal place of business, or in which the agency records are situated, or in the District of Columbia.

George B. Breznay
Director
Office of Hearings and Appeals
Date: July 11, 1997

 
(1)Dr. Rhoads was director of Memorial Hospital from 1940 to 1943, and director of Sloan- Kettering Institute from 1945 to 1959. He was also a consultant to the Atomic Energy Commission. He died in 1959.
(2)Memorial Hospital and Sloan-Kettering Institute merged in 1960 to become Memorial Sloan- Kettering Cancer Center (MSK).
(3)Medically administered total-body irradiation involves the use of external radiation sources that produce penetrating rays of energy to deliver a relatively uniform amount of radiation to the entire body. Final Report, Chapter 8. TBI was used as a medical treatment prior to becoming the focus of experimentation from 1944 to 1974, and is still used today. By the late 1940s, TBI was accepted as a treatment for certain cancers. In the 1950s, chemotherapy was risky and only marginally effective against some cancers, so interest in TBI continued. However, this interest waned by the late 1960s as chemotherapy became more effective.
(4)This web site is located at http://www.ohre.doe.gov/. It provides Internet access to DOE's 3.2 million cubic feet of records related to Cold War radiation research on humans.