Case No. VFA-0291, 26 DOE ¶ 80,189

May 27, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Martha J. McNeely

Date of Filing: April 28, 1997

Case Number: VFA-0291

On April 28, 1997, Martha J. McNeely filed an Appeal from a determination issued to her on March 27, 1997, by the Freedom of Information and Privacy Act Division (FOIA/PAD) of the Department of Energy (DOE). That determination concerned the remand of a prior Appeal Ms McNeely filed with the Office of Hearings and Appeals (OHA) regarding a request for information pursuant to the Privacy Act, 5 U.S.C. § 552a, as implemented by the DOE in 10 C.F.R. Part 1008. The initial request for information was made to the Richland Operations Office of the DOE. If the present Appeal were granted, the DOE would be required to conduct a further search for Ms McNeely's medical records.

I. Background

On December 3, 1996, Ms McNeely submitted a Privacy Act request to Richland seeking copies of her medical and dental records along with any existing bone and tissue samples obtained from her. In her initial request, Ms McNeely 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. During this period, Kadlec Hospital was a federal government facility. Ms McNeely provided all the necessary information to conduct a search for the information she was requesting.

In its December 26, 1996 Determination Letter, Richland stated that it had conducted a search for her medical and dental records but was unable to locate any responsive records. On January 28, 1997, Ms McNeely filed an Appeal arguing that the search for information was inadequate. She indicated a number of studies that she may have been involved in as a child, including "Project Sunshine" and "Project Gabriel."

In a February 25, 1997 Decision and Order, the Office of Hearings and Appeals (OHA) found that Richland's search for responsive information was adequate, but because of Ms McNeely's assertions regarding her possible involvement with human radiation studies, we remanded the matter to DOE Headquarters for a search of other DOE facilities. We

found that DOE Headquarters was best equipped to search for other human radiation documents. Martha J. McNeely, 26 DOE ¶ 80,164 (1997). In its March 27, 1997 Determination Letter, FOIA/PAD indicated that the files of the Office of Environment, Safety and Health contained no documents that were responsive to Ms McNeely's request. Determination Letter dated March 27, 1997, from GayLa D. Sessoms, Director, FOIA/PAD, to Martha J. McNeely. Approximately one month prior to the March 27 Determination Letter, Ms McNeely received a letter from Congresswoman Zoe Lofgren's office that enclosed a copy of a letter to the Congresswoman from Tara O'Toole, Assistant Secretary, Environment, Safety and Health. Dr. O'Toole's letter indicated that Ms McNeely's experiences do not indicate involvement in biomedical radiation experiments but rather radiation exposure of an environmental nature. Letter dated February 21, 1997, from Tara O'Toole, DOE Assistant Secretary, Environment, Safety and Health, to the Honorable Zoe Lofgren. Ms McNeely claims that Dr. O'Toole would have no way of knowing the nature of her medical treatment unless she had reviewed her medical records. Appeal Letter received April 28, 1997, from Martha J. McNeely to Office of Hearings and Appeals. Ms McNeely contends that the DOE, therefore, must have her medical records in its possession.

II. Analysis

The Privacy Act requires 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 or the individual or by some identifying number, symbol, or other identifying particulars assigned to the individual." 10 C.F.R. § 1008.2(m).

In reviewing the present Appeal, we contacted FOIA/PAD to ascertain the extent of the search that had been performed and to determine whether any documents responsive to Ms McNeely's request might exist. We were informed that the Radiation Office had been contacted to conduct a search for any records that might by responsive to Ms McNeely's request. Memorandum of Telephone Conversation between Janet R. H. Fishman, Attorney-Examiner, OHA, and Tonya Woods, FOIA/PAD, May 9, 1997. FOIA/PAD indicated that after an extensive computer search using Ms McNeely's name, social security number, and birth date, no records were found. In addition, the request was transferred to the Nevada Operations Office for a search of the Coordination and Information Center, which keeps records on radiation exposure to individuals. The Nevada Operations Office corresponded with Ms McNeely regarding its search during the course of this Appeal.

We are convinced that FOIA/PAD followed procedures which were reasonably calculated to uncover the material sought by Ms McNeely in her request. See Miller v. Department of State, 779 F.2d 1378, 1384-85 (8th Cir. 1985). The fact that the search did not uncover documents Ms McNeely believed may be in the possession of DOE does not mean that the search was inadequate. In addition, Ms McNeely has not provided any evidence, beyond her personal belief, that any additional, relevant documents exist in the DOE's files. Therefore, under the circumstances of this case, we find that FOIA/PAD's search for responsive documents was adequate and that no further documents responsive to Ms McNeely's request exist at DOE.

Further, Ms McNeely asserts that Dr. O'Toole's letter to Congresswoman Lofgren is evidence of the existence of her medical records at DOE. She contends that Dr. O'Toole would have no basis for making some of the statements contained in the letter to the Congresswoman unless Dr. O'Toole had reviewed her medical records and is now refusing the disclose them. Appeal Letter. We have reviewed this contention and conclude that it is not correct. We contacted Pam Frank, the DOE Case Manager responsible for processing the request Dr. O'Toole's office received from Congresswoman Lofgren. Congresswoman Lofgren's request included a case information sheet that Ms McNeely had provided to Congresswoman Lofgren. Ms Frank indicated that after she reviewed Ms McNeely's case information sheet, she recommended to Dr. O'Toole that she make the determination that ultimately appeared in her February 21, 1997 letter. Memorandum of Telephone Conversation between Janet R. H. Fishman, Attorney-Examiner, OHA, and Pam Frank, DOE Case Manager, May 14, 1997. Contrary to Ms McNeely's assertions, Ms Frank's recommendation and Dr. O'Toole's determination were based exclusively on Ms McNeely's case information sheet. Therefore, Ms McNeely's assertion has no merit.

The FOIA/PAD conducted a search that was reasonably calculated to uncover the material Ms McNeely was requesting. Further, we do not believe Dr. O'Toole's office possessed any information that is being withheld from Ms McNeely. Rather, Dr. O'Toole's office reviewed the material Ms McNeely submitted and determined that DOE did not possess anything responsive to Ms McNeely's request. Accordingly, Ms McNeely's Appeal should be denied.

It Is Therefore Ordered That:

(1) The Appeal filed on April 28, 1997, by Martha J. McNeely, Case No. VFA-0291, 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: May 27, 1997