Apr 30:
Judge approves Sunoco subpoena settlement: Neighbors' privacy protected TOLEDO -- "On Friday, Common Pleas Judge Ruth Ann Franks approved a settlement of the dispute over Sunoco's subpoena demand for confidential health information on Sunoco refinery neighbors in East Toledo and Oregon, Ohio. The settlement was reached to the satisfaction of both Ohio Citizen Action and Sunoco. 'I am delighted to announce that Sunoco neighbors' privacy was fully protected by this settlement,' said Sandy Buchanan, Executive Director, Ohio Citizen Action. 'This victory was made possible with the help of thousands of people in Oregon, Toledo, and across Ohio and the country. Our attorney, Bruce French, did a superb job. I can't thank them all enough." Buchanan said: "This settlement can be a turning point. It can be the occasion for neighbors and the company to begin constructive talks on the underlying problem of toxic pollution. We had hoped to be able to announce such talks at the same time as the subpoena settlement. To that end, on April 8, Todd Pincombe, our Northwest Ohio Program Director, wrote to Joel Maness, Sunoco's Senior Vice President for Refining and Supply. Pincombe proposed that we jointly announce such talks, to be held either in Philadelphia or Oregon. Mr. Maness has yet to acknowledge the letter, but our offer still stands,'" Ohio Citizen Action.
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Background on Sunoco's demand for confidential medical information from its neighbors
Ohio Citizen Action, the state's
largest environmental organization, is conducting a "good neighbor
campaign" to get Sunoco to reduce the pollution from its 100-year old
refinery. The campaign began in January 2003.
The Toledo refinery is located right in the middle of a residential area, in a primarily low-income neighborhood. For many years, neighbors have been citing health problems which are aggravated by the daily pollution emissions and the malfunctions at the refinery. As part of Ohio Citizen Action's campaign, we have helped residents to build their own environmental organization, known as Eastside-Oregon Environmental Group, and we have conducted door-to-door canvasses of the neighborhood.
Completely separate from Ohio Citizen Action's good neighbor campaign, several residents of the neighborhood filed a class action lawsuit against Sunoco in March 2004, citing the pollution from the refinery (the lawsuit is known as "Clarke vs. Sunoco.") In July 2004, Sunoco's attorney subpoenaed Ohio Citizen Action as a third-party in the case, demanding that we turn over any information we had collected from the neighbors, as well as all records of our contacts with the residents.
Initially, Sunoco's attorneys assumed that Ohio Citizen Action was running its good neighbor campaign as part of a conspiracy with the class action lawsuit. We demonstrated at a court hearing in October that this is not the case -- in fact, we are not coordinating with these attorneys, and any information they have obtained about our campaign has come from them reading our website.
Ohio Citizen Action objected to the sweeping terms of Sunoco's subpoena, stating that we could not be forced to turn over our membership records. Sunoco backed off this part of their demand, but insisted that we turn over the individual results of an informal health questionnaire we had circulated in the neighborhood surrounding the refinery in August 2004.
This survey, conducted by 40 volunteer canvassers, did not purport to be scientific, but instead was designed to collect data which would be aggregated and shown to public health authorities, as important information meriting further investigation. The survey found that, out of 473 respondents, sixty percent of the respondents or their children experience headaches, many on a daily basis. Thirty-five percent of the neighbors we talked with, or their children, have itchy, irritated eyes, and approximately a quarter of respondents or their kids have or experience asthma, shortness of breath, general fatigue, sinus infections and ear infections.
The neighbors of Sunoco who filled out the health questionnaires which have been subpoenaed as part of the "Clarke vs. Sunoco" lawsuit had no expectation that these questionnaires would be turned over to Sunoco or that they could themselves be subpoenaed or deposed by virtue of filling out the questionnaires. If they had been given this option, they may have chosen not to participate. Ohio Citizen Action has no interest in being the agent for having individuals dragged into what could be an unpleasant or intimidating experience simply because they were willing to talk to a volunteer canvasser at their door.
Ohio Citizen Action offered Sunoco several alternatives to receiving the individual questionnaires with identifying names and addresses. We provided the aggregate data to Sunoco, have provided a list of the streets where all the questionnaires were from, and offered to provide the individual questionnaires with the names and addresses redacted. We offered to contact each respondent and see whether they would be willing to release the information. We also suggested that Sunoco conduct its own health survey or hire an independent expert to do so. Sunoco refused all of the alternatives, insisting on receiving the data with identifying names and addresses. They said that they need the data as part of their argument in the class certification phase of the case.
Legal status of the case
On November 22, 2004, Judge Ruth Ann Franks of the Lucas County Court of Common Pleas ordered Ohio Citizen Action to turn over the health surveys to Sunoco's attorneys. We appealed her order, and have also filed a separate lawsuit in federal court, claiming that the information should be protected under the federal Health Insurance Portability and Accountability Act of 1996 (known as HIPAA). Both of these suits were pending at the time of the settlement. We also requested that a mediator be brought into the appeals case.
Ohio Citizen Action filed several affidavits in support of our position, including one from Lois Gibbs, the leader of the Love Canal citizens, who cited similarities between our survey and work done at Love Canal. Dr. Kathleen Fagan, an occupational and environmental physician who chairs the Ohio Citizen Action board, also submitted an affidavit citing the need for privacy of health information.
Sunoco filed legal motions at every turn to oppose our filings, and on January 3, 2005, Sunoco moved to strike Lois Gibbs' affidavit from the record. Sunoco's attorney, Louis Tosi, of the Toledo-area firm Shumaker, Loop, and Kendrick, also petitioned the court for Ohio Citizen Action to pay his legal fees. This petition has now been withdrawn.
Lucas County Common Pleas Court docket
August 31, 2004
Motion of third party deponent Ohio Citizen Action, Inc., to quash subpoena to produce documents in part and for clarification and stay, and Supporting Memorandum, John Clarke, et al. v. SUNOCO, INC., Court of Common Pleas, Lucas County, Aug 31, 2004, full text, 48 KB doc.
October 21, 2004
Supplemental
pleading with regard to motion to quash by Ohio Citizen Action, Inc.,
John Clarke et al., vs. Sunoco, Inc., Court of Common Pleas of
Lucas County, Oct 21, 2004, 40 KB .doc.
Affidavit in support of
motion to quash filed by Ohio Citizen Action, Inc., Rachael Belz,
Ohio Citizen Action.
November 22, 2004
Opinion and Judgement
Entry denying motion to quash by Ohio Citizen Action, John Clarke
et al., vs. Sunoco, Inc., Judge Ruth Ann Franks, Court of Common
Pleas of Lucas County, Ohio.
December 7, 2004
Ohio Citizen Action files
for time to appeal Judge Ruth Ann Franks order that it give neighbor health
surveys to Sunoco, Bruce French, counsel, Ohio Citizen Action,
1.6 MB pdf.
Proposed letter to survey
respondents. Sandy Buchanan, Executive Director, Ohio Citizen
Action, draft letter proposed to be sent to survey respondents, submitted
to Judge Ruth Ann Franks, Court of Common Pleas of Lucas County, Ohio,
25 KB doc.
Supporting
affidavit of Dr. Kathleen Fagan, Dr. Kathleen Fagan, President, Board
of Directors, Ohio Citizen Action, 32 KB doc.
Supporting affidavit of Sandy
Buchanan, Executive Director, Ohio Citizen Action, 48 KB
doc.
Supporting affidavit
of Paul Ryder, Organizing Director Ohio Citizen Action, 24
KB doc.
December 14, 2004
Supporting affadavit
of Lois Gibbs, Executive Director of The Center for Health, Environment,
and Justice, 24 KB doc.
December 17, 2004
Sunoco's memorandum in opposition
to Ohio Citizen Action's motion to stay or reconsider order denying motion
to quash subpoena.
December 20, 2004
Complaint
for declaratory relief, Ohio Citizen Action, Inc. vs. U.S. Department
of Justice, 33 KB doc.
December 22, 2004
Appeal to the Ohio
Sixth District, Bruce French, counsel, Ohio Citizen Action.
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Sunoco attorney Dominic Asante
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PHILADELPHIA, PA -- ". . .so long as plaintiffs maintain claims of personal injury, the requested information remains necessary to the defense of the matter," Dominic Asante, Chief Counsel, Government Affairs and Special Litigation Projects, Sunoco, letter to Rick Hind, Legislative Director, Greenpeace, Feb 14, 2005.
The 'plaintiffs' Mr. Asante refers to are part of a class action suit known as 'Clarke v. Sunoco.' Ohio Citizen Action had nothing to do with the filing of the suit, and is not a party to it.
Feb 21: Former top U.S. regulator challenges Sunoco
OREGON -- "I'm
writing to ensure that you are aware of ongoing Sunoco actions involving
the community around Sunoco's Toledo refinery. Sunoco is a CERES
member and advertises its commitment to the CERES principles, yet actions
by Sunoco's counsel appear to conflict with those principles. I am referring
specifically to Sunoco's efforts to require Ohio Citizen Action to disclose
personal medical information provided to Citizen Action, in confidence,
by people living near Sunoco's Toledo refinery...it is hard to see how Sunoco
can effectively minimize health risks from its refinery if the community
is afraid to talk about its health concerns with groups like Ohio Citizen
Action, which are trying to bring such concerns to Sunoco's attention,"
Eric Schaeffer, Director, Environmental Integrity Project, letter
to John Drosdick, CEO, Sunoco, Inc.
- Eric Schaeffer was the chief of the U.S. Environmental Protection Agency's civil enforcement office for a dozen years, serving Presidents George H.W. Bush, Bill Clinton, and George W. Bush.
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U.S. Senator Mike DeWine, in front of a John Singer Sargent portrait of U.S. Senator Calvin Brice (Allen County Museum).
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OREGON -- "Margie Richard, winner of the 2004 Goldman
Environmental Prize, has asked Sunoco CEO John Drosdick to withdraw
his company's demand for the personal medical information of the refinery's
neighbors in Toledo. Richard led the residents of Norco, Louisiana, in their
successful campaign to have Shell buy out their community and move the neighbors
away from the refinery. The Goldman prize honors one environmental leader
on each continent every year. Richard writes, 'Whatever the solution is near
your Toledo refinery, your neighbors need to know that you are willing to
work with them and that you are not going to insist on invading their privacy,'"
Sandy Buchanan, Ohio Citizen Action.
Urge Toledo Refinery owner to drop its demand for neighbors' personal medical information
TOLEDO -- "As physicians and nurses, we are appalled to hear that Sunoco's attorney in Toledo is demanding that confidential medical information obtained through a community health questionnaire be turned over to them. We realize that this legal move may have been made without consultation with you. . . Confidentiality of medical information is a primary and sacred precept of our profession. The individuals who filled out these questionnaires did so with the understanding that their individual data would be kept confidential, and they certainly did not give their permission for the data to be given to Sunoco's attorneys. You have the opportunity to restore good faith with the community by instructing your attorney to drop the demand for personal medical information and to accept the aggregate or redacted data," letter from 18 Ohio physicians and nurses to John Drosdick, CEO, Sunoco, Inc., February 4, 2005.
WASHINGTON, DC -- "Ohio Citizen Action has already given your attorneys the aggregate health data, along with the names of the streets where the surveys were conducted. They have offered to ask each individual whether they choose to release their own health information. Ohio Citizen Action has also offered to give Sunoco the individual surveys with the names and addresses redacted. Sunoco's attorney claims that they need individual health data to make their case in defense of a class action lawsuit that has been filed against them. If this is so, Sunoco can conduct its own health survey. Personal medical information is considered private in this country. . . We do not understand why Sunoco wants to violate the privacy of its neighbors. Sunoco would be better served to spend its resources cleaning up and modernizing the Toledo Refinery, which has had a series of accidents and releases of dangerous pollutants over the past several years. Ohio Citizen Action and the participants in their health survey were performing a valuable public health service. This unseemly demand for personal information by Sunoco is not only unethical but could easily be used by Sunoco to intimidate survey participants," letter, Rick Hind, Legislative Director, Greenpeace Toxics Campaign, to John Drosdick, CEO, Sunoco, Inc.. 125 KB doc.
CLEVELAND -- "From Toledo comes a cautionary tale for Ohio environmentalists: Everything you do can and will be used against you in what passes around here for a court of law. Last summer, Ohio Citizen Action conducted a health survey of East Toledo residents living near a Sunoco refinery. The group hoped the results -- such as 60 percent of respondents complaining of headaches and almost one-third suffering from asthma, shortness of breath, and fatigue -- would persuade Lucas county to launch its own study. But Sunoco turned the tables. In defending a suit brought by area residents, the company's attorney demanded that Citizen Action turn over every scrap of paper pertaining to its survey, including the names and medical histories of respondents. Citizen Action refused; participants had been told that their personal info would be kept confidential. But a Lucas County judge sided with Sunoco. In a letter to the court, Citizen Action offered to provide the results of the survey; a list of the streets on which respondents live; and copies of the questionnaires with names and addresses blanked out. But none of that was good enough, leading Citizen Action to believe that Sunoco is just trying to intimidate residents. To rub more salt into the wound, Sunoco attorney Louis Tosi -- of the firm Lucifer, Beelzebub, and Tosi -- has also demanded that Citizen Action pay his fees and provide the soul of a virgin," Cleveland Scene.
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| John Drosdick, Sunoco CEO, Chairman and President. |
TOLEDO -- On December 22, Bruce French, attorney for Ohio Citizen Action, filed an appeal of the Lucas County Common Pleas November court ruling in the Sunoco Toledo Refinery case. The court declined to set aside Sunoco's subpoena for confidential neighbor health surveys that Citizen Action had collected in August. In its appeal to the Ohio Sixth District, Citizen Action said that mediation could help settle the conflict. "With Court assistance, there may be a way to resolve this discovery issue," French said.
Intimidation alleged in Sunoco case
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| U.S. Courthouse, Toledo |
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| Sunoco Toledo Refinery as the neighbors see it. |
The complaint reads in part: "Ohio Citizen Action believes that it is subject to the disclosure and criminal provisions of the Health Insurance Portability and Accountability Act of 1996. Without a declaration that [the Act] has application to the canvassing described above, which is at the heart of Ohio Citizen Action's activities, persons acting of behalf of Ohio Citizen Action subject themselves to criminal prosecution from engaging in First Amendment protected speech and information gathering functions, notwithstanding the conclusion of the state court judge. Wherefore, your plaintiff demands the issuance of a declaratory judgment finding that the information gathering functions of Ohio Citizen Action and those acting in concert with it are subject to the provisions of [the Act]," Complaint for declaratory relief, Ohio Citizen Action, Inc. vs. U.S. Department of Justice, 33 KB doc.
TOLEDO -- "Sunoco's Toledo attorney filed papers with a Toledo court on December 14, demanding that Ohio Citizen Action members pay his legal fees. Louis Tosi had previously subpoenaed Citizen Action demanding that the organization turn over to him all health questionnaires, including personal medical information, about Sunoco neighbors, with their names and addresses. Ohio Citizen Action is opposing both these proposals," Ohio Citizen Action.Mr. Tosi's demands raise some good questions:
- What are his fees per hour, and how many hours has he been billing Sunoco for?
- Is Sunoco's headquarters in Philadelphia aware of what Mr. Tosi has been up to during these billable hours?
- Do they understand how his demands are interfering with promising efforts by Sunoco's Toledo Refinery and neighbors to work together on pollution problems?
- How does Mr. Tosi propose that Citizen Action raise the money to pay his fees: should we canvass door-to-door in the neighborhood around the Sunoco Refinery in Toledo?
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Lois Gibbs, community leader during the Love Canal
disaster and Executive Director of The
Center for Health, Environment, and Justice.
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TOLEDO -- "During the course of this campaign, the Love Canal Homeowners Association sued Hooker, which had been taken over by Occidental Chemical Corporation, a subsidiary of Occidental Petroleum. The case Urban et al. v. Occidental Chemical Corporation et al. was heard in Buffalo, New York; the Supreme Court, State of New York. During the discovery section of the legal case, Occidental attempted to get access to the individual medical information we had collected from the families. The judge held a discussion of this issue in his chambers, at which I was present. After hearing the arguments of both sides, the judge barred Occidental from receiving the information. He did say he would allow them to argue the question again at a later point in the case if they chose to do so, but they did not," affidavit, Lois Gibbs.
Media is silent
CLEVELAND -- "On November 22, Judge Franks denied Ohio Citizen Action's motion to quash Sunoco's subpoena and ordered the organization to turn over the survey forms within fourteen days. That clock ran out on December 6. Ohio Citizen Action has asked for time to contact the individual respondents and ask for their permission. Without that permission, Ohio Citizen Action says it can't comply with the judge's order. Contempt of court citations are the likely result. Now here's the weird part. This story was last covered by the Toledo Blade on September 9, three months ago. Since then, despite numerous Ohio Citizen Action press releases, there's been no media coverage of any kind -- not by the Blade, or Toledo television, or the AP, or the Cleveland Plain Dealer, or the Columbus Dispatch, or NPR. Nobody. Nothing. Total silence. Try to imagine that it was a reporter or a newspaper in this situation -- facing jail time for protecting the confidentiality of low-income residents who filled out a form describing their personal health problems. Would there be media attention? The only question would be the size of the headline on the front page of USA Today," Bill Callahan, Callahan's Cleveland Diary.
FT WORTH, TX -- Residents challenge 'sham' refinery deal, Scott Streater, Ft. Worth Star-Telegram.
Survey of residents finds health issues
OREGON -- "Are East Toledo and Oregon residents being sickened by foul air? While government agencies from Toledo to Columbus to Atlanta probe that question, the results of a mid-August survey performed by the state's largest environmental group show hundreds of people living near the Sunoco Inc. refinery on Woodville Road claim to have health problems. The survey, involving 473 respondents polled by 40 Ohio Citizen Action volunteers, showed 60 percent of those interviewed complained of headaches. More than a third said they suffer from itchy, irritated eyes. Nearly 30 percent also said they have asthma, shortness of breath, and general fatigue. One in four complained of sinus or ear infections. The activist group yesterday sent the results to Dr. David Grossman, Toledo-Lucas County health commissioner. . .Refinery spokesmen were not available last night to respond to the Ohio Citizen Action survey," Tom Henry, Toledo Blade.
TOLEDO -- Health Commissioner reply, David Grossman, Commissioner, Toledo-Lucas County Health Department, letter to Rachael Belz, Ohio Citizen Action.
Ohio Citizen Action presses Lucas County Health Department for a study of Sunoco Refinery neighbors health
OREGON -- "Sixty percent of the respondents or their children experience headaches, many on a daily basis. Thirty-five percent of the neighbors we talked with, or their children, have itchy, irritated eyes. Approximately a quarter of respondents or their kids have or experience asthma, shortness of breath, general fatigue, sinus infections and ear infections," Rachael Belz, Associate Director, Ohio Citizen Action.
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Article published Thursday, September 2, 2004
First Amendment cited by group working with refinery neighbors
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- Motion of third party deponent Ohio Citizen Action, Inc., to quash subpoena to produce documents in part and for clarification and stay, and Supporting Memorandum, JOHN CLARKE, et al. v. SUNOCO, INC., Court of Common Pleas, Lucas County, Aug 31, 2004, full text, 48 KB doc.