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NATIONAL ASSN. OF ATOMIC VETERANS, INC. v. DIRECTO

April 13, 1984

NATIONAL ASSOCIATION OF ATOMIC VETERANS, INC., Plaintiff
v.
DIRECTOR, DEFENSE NUCLEAR AGENCY, DEFENSE NUCLEAR AGENCY, DEPARTMENT OF DEFENSE, Defendants



The opinion of the court was delivered by: GREEN

In this Freedom of Information Act (FOIA) *fn1" case, plaintiff, the National Association of Atomic Veterans, Inc. (NAAV), a non-profit membership organization consisting of veterans who participated in atmospheric nuclear weapons testing and their wives, widows and offspring, seeks disclosure of the names and addresses of present and former military service members who participated in the atmospheric nuclear weapons testing program conducted at Nevada or South Pacific test sites during 1945-63. Defendants (collectively Defense Nuclear Agency or DNA) have withheld the requested information pursuant to Exemption 6 of FOIA, alleging that disclosure would constitute a "clearly unwarranted invasion of personal privacy." *fn2"

 Now before the Court are the parties' cross-motions for summary judgment. The material facts are not in dispute. For the reasons set forth herein, the Court finds that plaintiff is entitled to summary judgment as a matter of law. Accordingly, plaintiff's motion for summary judgment will be granted and defendants must release to plaintiff the requested information.

 In 1977, in response to a discovery by the Center for Disease Control of a number of cases of leukemia among participants in atmospheric nuclear testing, the Department of Defense (DOD) began a program to develop and analyze the history of atmospheric nuclear testing involving DOD personnel. The Defense Nuclear Agency then engaged in extensive publicity efforts to compile a roster of such persons, including the establishment of a toll-free telephone line and a special mailing address. Declaration of Thomas J. Haycraft at paras. 2-6. Approximately 49,000 individuals have called or written DNA in connection with this program. DNA has collected the names and addresses of about 30,000 of the respondents. Affidavit of Dr. David L. Auton, Program Manager for the Department of Defense Nuclear Test Personnel Review (NTPR) Program, at para. 8. DNA claims that each individual who either telephoned or wrote to DNA was given a pledge of confidentiality. Declaration of Thomas Haycraft at paras. 7-8; Affidavit of Miriam Gates at para. 4.

 The Court shall repeat the law applicable to this case as previously set forth. See Order, September 12, 1983. *fn3" When a party seeks access to agency records withheld under FOIA Exemption 6, the Court must inquire whether the information sought is contained in personnel, medical or similar files, and if so, whether disclosure of the information would constitute a "clearly unwarranted invasion of personal privacy." 5 U.S.C. ยง 552(b)(6) (1976); United States Dep't of State v. Washington Post Co., 456 U.S. 595, 602, 102 S. Ct. 1957, 72 L. Ed. 2d 358 (1982); Arieff v. United States Dep't of the Navy, 229 U.S. App. D.C. 430, 712 F.2d 1462, 1466 (D.C. Cir. 1983). Exemption 6 covers any information from government records which applies to a particular individual, regardless of the type of file in which it is contained. U.S. Dep't of State v. Washington Post Co., 456 U.S. at 602; Washington Post Co. v. United States Dep't of Health, 223 U.S. App. D.C. 139, 690 F.2d 252, 260 (D.C. Cir. 1982).

 In determining whether disclosure is "clearly unwarranted" in this case, the Court must balance the public interest in disclosure against the privacy interests of the veterans. Id. See Dep't of the Air Force v. Rose, 425 U.S. 352, 372, 48 L. Ed. 2d 11, 96 S. Ct. 1592 (1976). The "dominant objective" of FOIA is to provide full disclosure of agency records. Id. at 361. Moreover, Exemption 6's requirement that disclosure be found "clearly unwarranted" indicates that the balance of interests should generally favor disclosure. Washington Post Co. v. U.S. Dep't of Health, 690 F.2d at 261. The burden is on the agency to support its claim that the requested information is exempt from disclosure. Sims v. CIA, 206 U.S. App. D.C. 157, 642 F.2d 562, 567-68 (D.C. Cir. 1980).

 NAAV maintains that disclosure is in the public interest because it intends to use the names and addresses to conduct scientific and medical studies relating to the adverse health effects of exposure to atomic radiation and to inform atomic veterans of NAAV's "Self-Help Guide on Radiation" and of NAAV's atomic veteran locator service.

 Dr. Susan D. Lambert of the Radiation Research Institute, in cooperation with NAAV, plans to conduct two studies. One will attempt to identify a new neuromuscular disease that has been observed in atomic veterans. See Affidavit of Susan D. Lambert at para. 5. The second will attempt to develop a set of clinical diagnostic criteria for application to individuals who may have a radiation-induced disease and a means by which a given disease can be shown to be radiation-induced. Id. at P 6. Dr. Sidney Cobb of the Center for Atomic Radiation Studies, intends to expand upon the current medical examinations provided to atomic veterans at a project sponsored by the Center for Atomic Radiation Studies at the University of Massachusetts Medical Center. See Affidavit of Sidney Cobb at paras. 5-6. Each of the proposed studies will focus upon the frequent nerve, muscle and joint complaints of atomic veterans and can reasonably be expected to improve the quality of the care of atomic veterans. Lambert Affidavit at paras. 5-6; Cobb Affidavit at paras. 5-7.

 Originally, DNA had argued that NAAV's proposed studies would not serve the public interest because they would merely duplicate "programs and uses currently in effect through the government." DNA now maintains that NAAV's studies would duplicate an epidemiological study of the veterans at the South Pacific and Nevada test sites required, if feasible, by Section 601 of the Veterans' Health Care Amendments of 1983, Pub. L. 98-160, 98 Stat. 993. Defendants also doubt whether NAAV's studies will ever be accomplished because NAAV did not begin the study with its own membership and has limited financial resources. See, e.g., Affidavit of Dr. David G. Borenstein at para. 5.

 While the Court trusts that the Veterans Administration will conduct an epidemiological study, if feasible, as required by law, such a study by definition would not duplicate NAAV's proposed studies. *fn4" As NAAV explains, the focus of those clinical studies is on new, as opposed to recognized, diseases. Most significantly, government scientists recognize that a valid epidemiological study could not be based upon the self-selected group of veterans who contacted DNA. Affidavit of James J. Smith at para. 14. A clinical study, however, could use that population. Affidavits and Supplemental Declarations of Drs. Cobb and Lambert.

 Thus, NAAV's proposed studies would provide a public benefit additional to any provided by the government's own proposed study. Plaintiff has sufficiently dispelled defendants' speculation that plaintiff's studies will unlikely be achieved. Written plans for the studies have been prepared and the studies have been begun, but access to more atomic veterans is needed. Supplemental Declarations of Dr. Cobb at para. 7 and Dr. Lambert at para. 7. See Plaintiff's Exhibits B at paras. 4-5, C at paras. 5-7. The number of atomic veterans to whom NAAV now has access is insufficient to continue. Furthermore, NAAV does not intend to finance the studies itself; other non-profit organizations are assisting it. Plaintiff's Exhibits B and C.

 NAAV also needs the names and addresses of atomic veterans to inform them of NAAV's "Self-Help Guide on Radiation" and NAAV's atomic veteran locator service. NAAV's Self-Help Guide is published and distributed to provide information to atomic veterans about filing a claim with the Veterans Administration for service-connected disability benefits related to their exposure to atomic radiation. The locator service is used by atomic veterans to establish contact with other atomic veterans and to obtain evidence to support a claim for service-connected disability benefits. In addition, NAAV seeks to ensure that DNA has in fact provided atomic veterans with the information as defendants have alleged. See Affidavit of E. Cooper Brown at paras. 9-11.

 Defendants maintain that because DNA has informed the veterans of benefits available to them through various means, "NAAV's attempt to do so would only be redundant and accomplish no public purpose." Defendants' Memorandum at 15; see Auton Affidavit at para. 3 and Tab F; Haycraft Declaration at para. 13. The Court need not evaluate the adequacy of defendants' materials to conclude reasonably that NAAV's Self-Help Guide could increase a veteran's knowledge about government programs and assist him to present more effectively a claim for benefits. Moreover, the record contains some evidence that all veterans may not be receiving information supplied by DNA. See, e.g., Plaintiff's Exhibit A at para. 10.


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