Case No. VFA-0427, 27 DOE ¶ 80,156

August 17, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Bernice McCulloh

Date of Filings: July 13, 1998

Case Numbers: VFA-0427

On July 13, 1998, Bernice McCulloh (McCulloh) filed an Appeal with the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) in response to a determination that DOE’s Oak Ridge Operations Office (DOE/OR) issued to her on June 23, 1998. The determination concerned a request for information that McCulloh submitted pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. If the present Appeal were granted, DOE/OR would be required to conduct a further search for responsive material.

I. Background

According to McCulloh, in 1960 her mother was treated with radiation therapy(1) at Baptist Hospital in Winston Salem, North Carolina for cancer of the cervix. See Letter from McCulloh to Amy Rothrock, FOIA Officer, DOE/OR (June 10, 1998) (Request Letter); Clinical Summary, North Carolina Baptist Hospital (August 15, 1960). The treatment involved Cobalt-60 implants(2) allegedly prepared at DOE/OR for experimental purposes. McCulloh contends that her mother, Flossie Hilton (Hilton), was an unknowing participant in one such experiment, and was subjected to a very large dose of radiation that ultimately resulted in her death. See Request Letter. In 1994, McCulloh

contacted the DOE’s Office of Human Radiation Experimentation (OHRE)(3) and was assigned a case worker. Letter from McCulloh to DOE, EH Hotline (February 1, 1994). DOE found that Hilton was not a participant in an experiment, but rather, her therapy represented “conventional medical treatment . . . for that time.” Letter from Tara O’Toole, Assistant Secretary, EH to McCulloh (September 8, 1995). See also Letter from Peter Brush, Principal Deputy Assistant Secretary, EH to McCulloh (November 22, 1995). In addition, DOE stated that neither DOE nor its predecessor agencies were associated with the type of experimentation that McCulloh described at Baptist Hospital. Id. A review of DOE records revealed that human radiation experiments involving other isotopes were conducted at Baptist Hospital, but none involved Cobalt-60. Letter from Director, OHRE, to McCulloh (September 27, 1995). McCulloh continued to correspond with OHRE and EH through 1997, and the agency maintained that her mother was not the subject of any DOE-conducted experiment. See Letter from Peter Brush, EH to McCulloh (November 7, 1997) (stating that exposure to ionizing radiation is not defined as an experiment).

Not satisfied with the responses from OHRE and EH, McCulloh submitted a FOIA request to DOE/OR for information about the Cobalt-60 treatment and her mother’s experience. See Request Letter. On June 23, 1998, DOE/OR sent McCulloh copies of “the only two studies performed at Oak Ridge pertaining to Cobalt 60.” Letter from Amy Rothrock, Authorizing Official, to McCulloh (June 23, 1998) (Determination Letter). Neither study involved treatment for cancer of the cervix. On July 13, 1998, McCulloh filed the present Appeal, challenging the adequacy of DOE/OR’s search.

II. Analysis

In responding to a request for information filed 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). “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); 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 ¶ 80,102 (1988).

In reviewing the present Appeal, we contacted DOE/OR to ascertain the scope of the search it performed for the responsive documents. According to the FOIA Officer, DOE/OR only retains information about patients who were treated at the now-defunct Oak Ridge Institute for Nuclear Studies (ORINS) Hospital in Oak Ridge. Because Hilton was treated at Baptist Hospital, the FOIA Officer stated that Baptist Hospital would be the most likely repository of information about where the isotope was purchased and the exact dosage used. Nonetheless, the FOIA Officer informed us that she and her staff searched at DOE/OR for documents containing any of the following subjects: (1) Hilton’s name, (2) experiments with Cobalt-60, (3) the name of the doctor who allegedly prepared the isotope used in the treatment, and (4) Baptist Hospital in Winston Salem, North Carolina. The search produced two documents containing information about two Cobalt-60 experiments, both involving leukemia patients.

However, the DOE/OR FOIA Officer also noted that there may be statistical identifiers attached to the records of the two DOE Cobalt-60 experiments and, if Hilton was a subject, this information could confirm her participation. After discussing the Appeal with this office, the DOE/OR FOIA Officer offered to research the sponsoring office of the experiment for additional information on where the isotope was prepared and where the experiments took place. See Memorandum of Telephone Conversation between Amy Rothrock, Authorizing Official, DOE/OR and Valerie Vance Adeyeye, OHA Staff Attorney (July 30, 1998).

We find that DOE/OR conducted a search reasonably calculated to uncover all documents related to Hilton’s Cobalt-60 treatment at Baptist Hospital in 1960. After determining that McCulloh had corresponded with OHRE and received some responsive material from that office, DOE/OR then searched for and found additional responsive documents. Even though the experiments in the documents did not seem, on their face, related to Hilton’s treatment, DOE/OR nonetheless has agreed to research the experiments further to ascertain any reference to Hilton. A new response is forthcoming. As stated above, the FOIA does not require an exhaustive search, only a reasonable one. On the basis of the facts provided above, we find that DOE/OR conducted a search reasonably calculated to uncover responsive documents. Accordingly, we must deny McCulloh’s Appeal.

It Is Therefore Ordered That:

(1) The Appeal filed on July 13, 1998 by Bernice McCulloh, OHA Case No. VFA-0427, 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: August 17, 1998

(1)Radiation therapy is the treatment of cancer and other diseases with ionizing radiation. Ionizing radiation deposits energy that injures or destroys cells in the area being treated and makes it impossible for these cells to continue to grow. It is often used to treat localized solid tumors, such as cancer of the skin, breast, or cervix. National Cancer Institute Website.

(2)Cobalt-60 is a radioisotope (an atom with nuclei that are seeking a more stable nuclear configuration by emitting radiation). Radioisotopes can be manipulated to perform different tasks, and are widely used in medicine and in many industrial processes. Nuclear Regulatory Commission Website, “The Regulation and Use of Radioisotopes in Today’s World.”

(3)OHRE was established in March 1994 to document DOE’s Cold War radiation research on human subjects. OHRE has a web site located at http://www.ohre.doe.gov that provides Internet access to DOE’s 3.2 million cubic feet of records related to human radiation experiments. The documents concern experiments conducted at government and non- government facilities. The Office of Environment, Safety and Health (EH) now fields inquiries about human radiation experimentation.