FOIA Commission fines Conn. Guard, says it failed to provide anthrax records

Judge advocate disagrees with wording of finding

By David Castellon

Army Times Publishing Co.

January 22, 2001 (Jan 29 edition)

Connecticut National Guard officials said they have given records and recordings to two former Air National Guard pilots after a commission ruled the Guard violated state Freedom of Information laws.

But a judge advocate for the Guard said he disagrees with the Connecticut Freedom of Information Commission’s addition of a line to its findings, saying that one of the pilots was ordered to resign.

"We didn’t feel it was established at the hearing, wasn’t proven at the hearing," said Army Guard Lt. Col. Mike Tuohy, staff judge advocate for the Connecticut Guard.

The commission’s job, he said, was to judge the complaint of former Air Guard pilots Thomas "Buzz" Rempfer and Russell Dingle regarding the records, not to determine if there was merit to their claim that they and six other A-10 Thunderbolt II pilots in the 103rd Fighter Wing were ordered or pressured to resign after refusing mandatory anthrax

vaccinations.

In a meeting Jan. 10 in Hartford, the FOIA Commission upheld a hearing officer’s conclusion that Guard officials dragged their feet or failed altogether to provide documents to Dingle and Rempfer.

"It is found that the respondent did not thoroughly search the records that [the Guard] keeps on files or maintains in response to the request" for any and all information related to anthrax vaccinations, according to the written recommendation of Mary E. Schwind, a hearing officer who heard arguments from both sides in July.

The commission also followed her recommendation to fine the Guard $200 for the violations.

Rempfer and Dingle, now majors in the Air Force Reserve, have said they hope to find evidence among the records to prove they and the other pilots were forced to resign their commissions rather than be given hearings over their refusals to get the controversial shots.

Although Connecticut Guard leaders denied holding back records, Tuohy said officials will pay the fine and not appeal the order.

The commission made some changes to Schwind’s findings and recommendations. Most were minor, clarifying the wording in some sentences. But the commissioners also amended a line in the findings for Dingle’s case to say he resigned his Guard commission "after being ordered to resign."

That wording was part of the finding Schwind made in Rempfer’s case. Guard officials have denied forcing the pilots to resign, and Tuohy objected to wording indicating that officials ordered the resignations.

Schwind has declined to discuss the cases.

The Connecticut Guard is awaiting a formal order from the FOIA Commission, Touhy said, adding that even before the hearing, officials were complying with Schwind’s recommendations — now part of the order — to better search their records.

He said that before the Jan. 10 hearing, Dingle and Rempfer were given the last of the records they requested short of those that don’t exist anymore or may never have existed.

Rempfer said what he and Dingle do next will depend on the written statements that the FOIA Commission directed the Guard to send "in a reasonable and timely manner" detailing which records could not be provided to the former Guardsmen and why. And, Rempfer added, he intends to ask for still more records.