(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.