aug 2012
(CN) - A federal judge found that the Centers for
Disease Control and Prevention excessively redacted information sought by a
father trying to establish a link between mercury-based vaccines and autism.
Brian Hooker says there is "a mounting body of compelling scientific
literature" that shows a relationship between the mercury-based compound and
autism, but that the CDC and U.S. Department of Health and Human Services
have consistently denied the link.
Thimerosal is a mercury-based compound that the Food and Drug
Administration approved as a vaccine preservative. In 2003, the American
Academy of Pediatrics' official journal,
Pediatrics, and the
Journal
of the American Medical Association published Danish studies that found
no causal relationship between vaccines containing thimerosal and the
incidence of autism.
Believing that there is more to the story, Hooker sent four Freedom of
Information Act requests to the CDC in 2004 and 2005.
One request sought all written CDC correspondence regarding the Danish
studies. The CDC sent these requests to the National Immunization Program,
the National Center for Birth Defects and Developmental Disabilities, the
National Center for Environmental Health and the Office of the Executive
Secretariat for processing.
Ultimately the CDC withheld most of the responsive documents, claiming
that they contained exempt information and opinions given by Danish
researchers who were acting as "temporary consultants," authors of the study
and researchers for the National Immunization Program.
The withheld documents include draft manuscripts of a study concerning
the safety of thimerosal-containing vaccines, internal email communication
regarding manuscript drafts and edits, review comments and draft
correspondence, email addresses, contact information of individuals, and
other personal information.
After Health and Human Services rejected Hooker's appeal, he filed suit
in the U.S. District Court for the District of Columbia. He says that
inapplicable FOIA exemptions amount to bad faith.
U.S. District Judge Amy Jackson noted Tuesday that documentation of the
autism link could help Hooker, who has an autistic child pursuing a vaccine
injury case before the U.S. Court of Federal Claims.
After reviewing the materials in camera, Jackson granted the government
agencies partial summary judgment on Tuesday.
"Even if plaintiff's frustration with the agency's position on the
science is well founded, he has not identified any facts that would
demonstrate bad faith in the defendants' response to his FOIA request," the
33-page decision states.
In one instance, the agency redacted a comment about the personal life
of its researcher Poul Thorsen, who faces a
criminal
charges of wire fraud and money laundering.
Thorsen allegedly pushed the CDC to fund the Danish studies on the
thimerosal-autism question, then stole over a million dollars from the $11
million grant.
Hooker claims that these charges create a "strong public interest in
his [Thorsen's] personal life, especially that being disclosed to CDC
employees."
Jackson disagreed. "The court finds that the disclosure of a comment
relating to Dr. Thorsen's personal life would not improve the public's
understanding of how the government operates," she wrote. "There is no
indication that CDC, the alleged victim, was complicit in the charged scheme
to defraud the agency of over $1 million of research grant funds. So, the
mere fact that Dr. Thorsen has been indicted does not transform his personal
information into information about what the government 'is up to,' and it
was properly redacted."
In several areas, however, the judge found that the agency withheld
certain information that is not actually personal enough to be withheld
under Exemption 6.
As such, the government must do a new search of records withheld under
this exemption. It must produce nonexempt information and demonstrate that
it complied adequately. This production is due Sept. 21.
Jackson also found that the government failed to show that it made an
adequate search for documents related to one of Hooker's requests.
In this respect, it must to amend or supplement declarations with
additional detail, "including a description of the search methods employed
by CDC, the names and roles of the individuals who performed the searches,
and a list of the search terms used.