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Reich v. DOE

Reich v. DOE

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Published by Janelle Lawrence
A federal judge has thrown out science journalist Eugenia Sameul Reich's Freedom of Information suit against the Department of Energy over the government's refusal to release the full report of an investigation into research fraud by its contractors.
A federal judge has thrown out science journalist Eugenia Sameul Reich's Freedom of Information suit against the Department of Energy over the government's refusal to release the full report of an investigation into research fraud by its contractors.

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Published by: Janelle Lawrence on Mar 17, 2011
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03/17/2011

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United States District CourtDistrict of Massachusetts________________________________ EUGENIE SAMUEL REICH,Plaintiff,v.U.S. DEPARTMENT OF ENERGY, and OAK RIDGE NATIONAL LABORATORY,Defendants.________________________________ ))))) Civil Action No.) 09-10883-NMG))))MEMORANDUM & ORDER GORTON, J.
Plaintiff Eugenie Samuel Reich (“Reich”) seeks an order,pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C.§ 552, requiring defendants to produce an investigation reportregarding allegations of research fraud and misconduct by certainscientists working at defendant Oak Ridge National Laboratory(“ORNL”).
I. Factual Background 
Reich is a freelance science writer and reporter and iscurrently a Knight Science Journalism Fellow at the MassachusettsInstitute of Technology. ORNL is owned primarily by thedefendant United States Department of Energy (“the DOE”) andperforms various kinds of research and technical assistance forthe DOE and other organizations. ORNL has been managed by aprivate company, UT-Battelle, LLC (“UT-Battelle”), since April,2000, pursuant to a contract with the DOE (“the ORNL Contract”).
Case 1:09-cv-10883-NMG Document 53 Filed 03/17/11 Page 1 of 20
 
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A. Pennycook Misconduct and Investigation
Dr. Stephen J. Pennycook was a prominent, DOE-fundedelectron microscopy researcher working at ORNL. Reich allegesthat, in May, 2006, two science journals, Nature and
 
NaturePhysics, advised Pennycook and ORNL of fraud allegationspertaining to research and publications by Pennycook and hisgroup between 1993 and 2006.
 
The allegations of fraud andmisconduct against Pennycook and others received considerablepublicity, including articles in The Boston Globe, the KnoxvilleNews Sentinel and Nature. In November, 2006, Pennycook and twoco-authors published a statement admitting that they treatedcritical data inconsistently in a 1993 paper published in Nature.Under the Federal Policy on Research Misconduct, governmentcontractors are required to investigate reports of fraud ormisconduct and to disclose the results to the appropriategovernment agency. The Policy requires that[w]hen an investigation is complete, the researchinstitution will forward to the agency a copy of theevidentiary record, the investigative report,recommendations made to the institution’s adjudicatingofficial, and the subject’s written response to therecommendations (if any).65 FR 76260-76264, Dec. 6, 2000. The DOE’s policy, codified at10 C.F.R. § 733, and the ORNL Contract are allegedly consistentwith the Federal Policy on Research Misconduct. In accordancewith those policies, ORNL conducted an investigation into theallegations of research misconduct by Pennycook and his research
Case 1:09-cv-10883-NMG Document 53 Filed 03/17/11 Page 2 of 20
 
-3-group relating to a 1993 Nature paper, a 2006 Nature Physicspaper and some 2006 online papers (“the PennycookInvestigation”).The Pennycook Investigation was completed in July, 2006. Anindependent committee concluded that Pennycook and his colleagueshad not engaged in research misconduct and issued a report (“theInvestigation Report”). On August 15, 2006, James Roberto,Director of Strategic Capabilities at ORNL and Senior VicePresident of UT-Battelle (“Roberto”), emailed an unsoliciteddraft of the Investigation Report (“the Draft Report”) toPatricia Dehmer, the then Associate Director of Basic EnergyServices at the DOE Office of Science (“Dr. Dehmer”). The DraftReport was accompanied by a memorandum identifying it as a draft.Subsequently, Roberto brought one copy of the ORNLInvestigation Report to meetings at the DOE on December 27, 2006and March 9, 2007. The purpose of the meetings was to allow theDOE to review the process that the investigative panel had usedto arrive at their findings. After the meetings, the DOEconfirmed that the investigation committee was objective andfollowed adequate procedures. At the end of each meeting,Roberto retrieved the copy of the report. Before the March 9,2007 meeting, a final copy of the report, containing an addendumand appendices, (“the Final Report”) was sent to Dr. Dehmer.Roberto retrieved that copy at the March 9, 2007 meeting,
Case 1:09-cv-10883-NMG Document 53 Filed 03/17/11 Page 3 of 20

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