A US court has rebuffed a freedom of information request for an investigation report into strongly-denied allegations of research misconduct at Oak Ridge National Laboratory in Tennessee, which is run by non-profit UT Battelle under contract to the US Department of Energy (DOE).
I’m the plaintiff in the case — Reich vs DOE — which I filed in 2009 in district court in Boston. I believe the ruling, made final on 22 August, will, unless it is reversed on appeal, make it much more difficult for the public to scrutinize DOE’s oversight of alleged scientific fraud, and the approach to alleged misconduct taken by its Office of Science, which supports some 27,000 scientists and 10 national laboratories.
Although the decision prevents me from seeing the report, the litigation process to date has been revealing. As I reported in July, court filings by the government state that officials overseeing the investigation did not read the final report of the investigation, and voluntarily returned copies that were provided to them. Experts in the handling of alleged misconduct criticized this as flawed oversight; a DOE spokeswoman said that the agency does not comment on litigation matters in July, and did not respond to a request for comment sent today.
The government argues that its officials’ supposed failure to read the report, which was originally provided to them by UT Battelle, mean it is not an “agency record” subject to the US Freedom of Information Act. In a ruling dated 19 August, the district court judge agreed, finding that even though the official responsible for overseeing the investigation, the Office of Science’s Deputy Director Patricia Dehmer, scanned a version of the report, noted it reflected conversations she had about the case, and attended meetings where its contents were discussed, she claims she did not rely on it, and therefore the government’s reliance on the report was too “minimal” for it to be an agency record.
The ruling makes no reference to the US Federal Policy on Research Misconduct, which states such reports should be created and provided to the government for oversight purposes.
The court’s decision was a summary judgment, with no opportunity for oral arguments. The court had also earlier denied my motion for discovery, which meant there was no opportunity to cross-examine government witnesses whose statements were relied upon. I have 60 days to file an appeal.