Federal agency must turn over records held by auditor
ILLINOIS–The Chicago Tribune has a right of access to records of the examination by a private auditor of a major breast cancer study by the National Cancer Institute even though the records are in the hands of the auditor rather than of the agency, a federal District Court in Chicago ruled in late February.
Judge Rebecca Pallmeyer wrote that agencies cannot avoid disclosure under the Freedom of Information Act of records they effectively create and control merely by delegating sensitive assignments to independent contractors.
Tribune reporter John Crewdson filed FOI Act requests in late 1994 and early 1995 for records of the review by EMMES Corporation in Maryland of a study the institute conducted in the early 1990s comparing the effectiveness of lumpectomies and mastectomies in treating breast cancer. The institute said it did not have to respond to his request except for records it actually possessed.
The agency had concluded in the early 1990s that lumpectomies were as effective as mastectomies in treating the cancers, but the Office of Research Integrity, another agency within the Department of Health and Human Services, challenged the study, saying a participating doctor had falsified documents.
The institute reanalyzed the data and announced in March 1994, shortly after the doctor’s conduct was publicly disclosed, that it had confirmed the previously announced results.
However, the Tribune reported a few days later that the government’s reanalysis was flawed.
In April 1994 the head of the institute commissioned an audit, ultimately employing EMMES to reanalyze the statistical data to rule out fraud, verify the data and “help restore confidence in the conclusions” of the institute’s study.
Traditionally federal agencies have required that records be in the agency’s possession before the FOI Act applies; however, in 1996 the U.S. Court of Appeals in Washington, D.C., (D.C. Cir.) required HHS to retrieve records held by a private contractor in a closely controlled agency tobacco study and process them under the FOI Act. (Chicago Tribune Co. v. Department of Health and Human Services; Media Counsel: Richard O’Brien, Chicago)