Case No. VFA-0265, 26 DOE ¶ 80, 164

February 25, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Martha J. McNeely

Date of Filing:January 28, 1997

Case Number: VFA-0265

On January 28, 1997, Martha J. McNeely (Appellant) filed an Appeal from a determination issued on December 26, 1996 by the Richland Operations Office (Richland) of the Department of Energy (DOE). In that determination, Richland stated that it was unable to locate documents responsive to the Appellant's December 3, 1996 request under the Privacy Act of 1974, 5 U.S.C. § 552a, as implemented by the DOE in 10 C.F.R. Part 1008. This Appeal, if granted, would require the DOE to conduct another search for responsive documents.

I. Background

On December 3, 1996, the Appellant submitted a Privacy Act request to Richland seeking copies from the DOE of her medical and dental records along with any existing bone and tissue samples obtained from her. In her request, the Appellant stated that her parents had worked at the DOE's predecessors' facility at Hanford, Washington, and that she had received medical treatment at Kadlec Hospital and possibly other government facilities during the period 1946 through 1954. (1) The Appellant provided Richland with the names of her parents, her social security number and her date of birth. In its December 26, 1996 Determination Letter (Determination Letter), Richland stated that it had conducted a search for Appellant's medical and dental records using her name, date of birth and social security number but were unable to locate any responsive records. (2)

On January 28, 1997, the Appellant filed the present Appeal. In her submission, the Appellant argues that the search for documents was inadequate. The Appellant cites a number of studies that she believes she may have been involved in as a child in Hanford, Washington, and thus her involvement in these studies would have created medical records. Specifically, the Appellant asserts that she was a student at Lewis and Clark Elementary School in Hanford, Washington during 1948 through 1953 and believes that she was one of "an identified group of irradiated schoolchildren and children of Hanford workers." The Appellant also asserts that she may have been involved in an experiment named "Project Sunshine" which may have been connected with an entity referred to as the "Strontium" unit. The Appellant also asserts that she may have participated in "Project Gabriel," a study she asserts involved the uptake and retention of strontium and cesium in humans. The Appellant also apparently claims that she may have been involved with a study described in a "1951 report from St. Louis" which referenced a nationwide appeal for "tens of thousands of baby teeth." Nevertheless, the Appellant contends Richland provided no information concerning any of the above projects. Finally, the Appellant argues that the fact that Hanford discovered that her parents' medical records were transferred to DuPont indicates that her own medical records are still in the possession of Hanford.

II. Analysis

The Privacy Act requires, inter alia, that each federal agency permit an individual to gain access to information pertaining to him or her which is contained in any system of records maintained by the agency. 5 U.S.C. § 552a(d). DOE regulations define a system of records as "a group of any records under DOE control from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particulars assigned to the individual." 10 C.F.R. § 1008.2(m). (3)

We inquired as to the search that was conducted for records the Appellant requested. (4) See Memorandum of telephone conversation between Angela Ward, Richland, and Richard Cronin, OHA

Staff Attorney (January 31, 1997); Memorandum of telephone conversation between Yvonne Sherman, Richland, and Richard Cronin, OHA Staff Attorney (February 7, 1997). We were informed that a DOE contractor, the Hanford Environmental Health Foundation (HEHF), has possession of all of the available systems of records which could contain responsive material. HEHF possesses medical records on Hanford employees from the time period specified by the Appellant along with medical records from Kadlec Hospital, where Hanford employees and their families were treated. The Kadlec Hospital records are stored by the patient's date of birth, and a search was conducted using the Appellant's date of birth. No records were found. A search was also made of the Hanford employee medical records in HEHF's possession using the Appellant's and Appellant's parents' names and the Appellant's social security number. No records regarding the Appellant were found but evidence was discovered indicating that the Appellant's parents' employee medical records were among those that had been transferred by DuPont to Wilmington, Delaware.(5)

With regard to the Appellant's assertions regarding the studies in which she may have participated, a Richland official informed us that she had no knowledge of any documents existing in Richland regarding "Project Sunshine" or "Project Gabriel." See Memoranda of telephone conversation between Yvonne Sherman, Richland, and Richard Cronin, OHA Staff Attorney (February 7, 1997). Further, the only records in Richland regarding screening of elementary school children were whole body counts for background radiation performed beginning in 1963, which was after the period during which the Appellant reported that she lived in Hanford. Thus, no search was made regarding these records. The official further stated that she did not have any knowledge of agency records regarding any studies involving baby teeth. In addition, the official had knowledge of only one study using strontium at Hanford and that the study involved two male researchers as subjects.

Given the facts presented before us, we believe that Richland made a reasonable search for responsive material. However, given the Appellant's assertions regarding her possible involvement with human radiation studies, we believe that other DOE facilities may possess relevant human radiation documents. Since DOE Headquarters is best equipped to search for these records, we will remand this matter to DOE Headquarters so that it may conduct a search for responsive records which possibly may exist at other DOE facilities. (6) The Appellant's Appeal will therefore be granted in part.

It Is Therefore Ordered That:

(1) The Appeal filed by Martha J. McNeely on January 28, 1997, Case Number VFA-0265, is granted in part as set forth in Paragraph (2) below and denied in all other respects.

(2) This matter is hereby remanded to the Department of Energy's Headquarters Freedom of Information and Privacy Group so that a broader search may be made for medical and dental records regarding Martha J. McNeely.

(3) This is a final order of the Department of Energy of which any aggrieved party may seek judicial review pursuant to the provisions of 5 U.S.C. § 552a(g)(1). 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:February 25, 1997

(1)During this period Kadlec Hospital was a federal government facility at Hanford, Washington.

(2)Richland did locate evidence that at one time it possessed records regarding the Appellant's parents but that those records had been taken by DuPont, the contractor operating the DOE's Hanford facility at the time her parents were employed at Hanford, to a DuPont facility at Wilmington, Delaware. Richland provided the Appellant with information on how to contact DuPont to obtain those records. See Memorandum of telephone conversation between Angela Ward, Richland Operations Office, and Richard Cronin, OHA Staff Attorney, (January 31, 1997).

(3)In processing Appellant's request, Richland conducted its search as if the request had been made under the Freedom of Information Act, which encompasses a greater range of documents than the Privacy Act. See Memorandum of telephone conversation between Yvonne Sherman, Richland, and Richard Cronin, OHA Staff Attorney (February 18, 1997).

(4)We note that the Privacy Act and the Freedom of Information Act apply only to agency documents and not to tissue samples in the possession of an agency. Nevertheless, we have been informed by an official at Richland that the only tissue samples of any kind that Richland possesses are a few samples from long-deceased individuals reduced to ash.

(5)We do not believe that the fact that employee health records were at one time created for the Appellant's parents would necessarily indicate that an employer created a medical record for an employee's child.

(6)We will also provide to DOE Headquarters under separate cover the additional information the Appellant provided in her Appeal.