UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
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BEVERIDGE & DIAMOND, P.C., )
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Plaintiff, )
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v. ) Civ. Action No. 14-631 (EGS)
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UNITED STATES ENVIRONMENTAL )
PROTECTION AGENCY, )
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Defendant. )
)
MEMORANDUM OPINION
Plaintiff Beveridge & Diamond, P.C. (“Beveridge”) requested
information from the defendant, the Environmental Protection
Agency (“EPA”), under the Freedom of Information Act (“FOIA”), 5
U.S.C. § 552. In response to Beveridge’s FOIA request, the EPA
released some records to Beveridge but claimed that one set of
data was not in its possession, and thus not an “agency record”
under FOIA. Beveridge challenges the EPA’s claim that it does
not possess the data. Pending before the Court are the parties’
cross-motions for summary judgment. Upon consideration of the
motions, the responses and replies thereto, the applicable law,
and the entire record, the Court DENIES Beveridge’s motion and
GRANTS the EPA’s cross-motion.
I. BACKGROUND
A. Libby Amphibole Asbestos
In 1881, gold miners discovered vermiculite in Libby,
Montana. See EPA’s Mot. for Summ. J. (“EPA’s Mot.”), ECF No.
16-2 (“McKean Decl.”) ¶ 7. Vermiculite is a silver-gold to
gray-brown mineral that is flat and shiny in its natural state.
Id. Between 1923 and the early 1990s, a mine near Libby
produced millions of tons of vermiculite ore. See Beveridge’s
Mot. for Summ. J. (“Bev’s Mot.”), ECF No. 9 at Ex. B. While in
operation, the Libby mine may have produced more than 70 percent
of the world’s supply of vermiculite. See McKean Decl., ECF No.
16-2 ¶ 7. Vermiculite has been used in building insulation and
as a soil conditioner. Id. The vermiculite from the Libby mine,
however, was contaminated with a toxic form of naturally-
occurring asbestos called tremolite-actinolite asbestiform
mineral fibers, also known as Libby amphibole asbestos. Id.
Libby amphibole asbestos is a distinct and relatively
uncommon form of asbestos. Id. It is not a commercially viable
mineral, but is instead a contaminant in the vermiculite ore
from the Libby mine. Id. Hundreds of former mine workers and
Libby residents have been diagnosed with asbestos related
disease. Id. ¶ 9. Many individuals have died from illness
caused by asbestos exposure. Id.
B. Toxicological Review
The EPA initiated an emergency response action in November
1999 to address questions and concerns raised by citizens of
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Libby regarding possible ongoing exposures to asbestos fibers as
a result of historical mining, processing, and exportation of
asbestos-containing vermiculite. Id. ¶ 8. As part of its
response, the EPA engaged in a number of efforts, including
cleanup and related risk management activities in Libby. Id.
To support future cleanup efforts and risk related activities,
the EPA is in the process of conducting a Toxicological Review
of Libby amphibole asbestos (“Toxicological Review” or
“Toxicological Assessment”), which will, among other things,
summarize “the potential adverse health effects of Libby
amphibole asbestos exposure.” Id. ¶ 11. The EPA released its
draft Toxicological Assessment for external review and comment
in August 2011. Id.
The draft Toxicological Assessment reviews the potential
hazards, both cancer and noncancer health effects, from exposure
to Libby amphibole asbestos and provides quantitative
information for use in risk assessments. Id. ¶ 14.
Occupational epidemiology studies for two worksites where
workers were exposed to Libby amphibole asbestos forms the basis
of the draft Toxicological Review. Id. ¶ 13. These worksites
include the mine and mill near Libby, Montana, and the
vermiculite processing plant in Marysville, Ohio, which produced
lawn care products using vermiculite. Id. The cohort of
workers that were exposed to Libby amphibole asbestos at the
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plant in Marysville, Ohio, (“Marysville, Ohio Cohort”) has
served as the basis of earlier published, peer-reviewed
scientific studies, which the EPA relies on in its draft
Toxicological Review. Id.
The final Toxicological Review will be included on the
EPA’s Integrated Risk Information System (“IRIS”) database and
will be used to support the EPA’s cleanup and related risk
management activities at the Libby site. Id. ¶ 11. The EPA’s
IRIS is a “human health assessment program that evaluates
information on health effects that may result from exposure to
environmental contaminants.” Id. ¶ 12. IRIS is used to support
the EPA’s regulatory activities. Id. ¶ 11. The EPA is in the
processes of finalizing its Toxicological Review. Id.
C. University of Cincinnati
There have been additional efforts — parallel to, and at
times related to, the EPA’s Toxicological Review — by federal
agencies to study the adverse health effects of Libby amphibole
asbestos. Specifically, federal agencies have entered into the
following agreements with the University of Cincinnati (“UC”):
United States Department of Transportation (“DOT”). The
DOT Volpe Center contracted with UC to update data on the
Marysville, Ohio Cohort (“Volpe Contract”). See Bev’s Mot., ECF
No. 9 at Ex. B. The Volpe Contract assigned seven tasks to be
performed in two phases. Id. The first phase involved
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scientific assessment of the ways in which workers were exposed
to asbestos and how much asbestos they were exposed to. Id.
The EPA funded phase one of the Volpe Contract. See McKean
Decl., ECF No. 16-2 ¶ 16. The second phase studied how being
exposed to asbestos affected the workers’ health. See Bev’s
Mot., ECF No. 9 at Ex. B. The EPA did not fund phase two of the
Volpe Contract. See McKean Decl., ECF No. 16-2 ¶¶ 15-16.
United States Department of Health and Human Services
(“HHS”).1 The Agency for Toxic Substances and Disease Registry
(“ATSDR”), an arm of HHS, awarded a grant to UC to study
“disease progression in persons exposed to asbestos contaminated
vermiculite ore in Marysville, Ohio” (“ATSDR Grant”). See Bev’s
Mot., ECF No. 9 at Ex. C.
EPA. The EPA entered into an agreement with Syracuse
Research Corporation, Inc. (“SRC”) related to the draft
Toxicological Review of Libby amphibole asbestos (“SRC
Contract”). Id. at Ex. H. The EPA required SRC to “establish a
subcontract” with a third party knowledgeable of the Marysville,
Ohio Cohort. Id. Because UC previously performed studies on
the Marysville, Ohio Cohort, SRC subcontracted with UC. Id.
SRC and UC were tasked with assisting the EPA in responding to
comments and recommendations from the EPA’s Science Advisory
1
Beveridge has filed a separate FOIA action against HHS seeking
the same data. Beveridge & Diamond, P.C. v. U.S. Dep’t of Health
& Human Servs., Case No. 14-80 (D.D.C. filed Jan. 21, 2014).
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Board (“SAB”) concerning the draft Toxicological Review. See
McKean Decl., ECF No. 16-2 ¶ 18.
D. Procedural History
Beveridge is a professional corporation incorporated in
Washington, D.C. with its principal place of business in
Washington, D.C. See Compl., ECF No. 1 ¶ 8. In June 2013,
Beveridge filed a FOIA request with the EPA for data and
documents “related to follow-up work and updates to a
Marysville, Ohio Cohort that was the subject of previous
scientific studies.” Id. ¶¶ 1–2. Specifically, Beveridge
requested, among other information, high resolution computed
tomography (“HRCT”) data and pulmonary function testing (“PFT”)
data; Beveridge alleged that both sets of data “have been used
as the primary basis for the non-cancer . . . portion of” the
EPA’s Toxicological Assessment. Id. ¶¶ 2, 10, 15.
In response to Beveridge’s FOIA request, the EPA produced
seventy-one unredacted documents and a group of redacted
contracts. See McKean Decl., ECF No. 16-2 ¶ 22. The EPA,
however, withheld HRCT data under FOIA exemptions for
confidential business information, deliberative process and
personal privacy. Id.; see also 5 U.S.C. §§ 552(b)(4)–(5).
Further, the EPA claimed that it did not possess any records
concerning PFT data. See Compl. ¶ 19; McKean Decl., ECF No. 16-
2 ¶ 31. In October 2013, Beveridge filed an administrative
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appeal with the EPA challenging the Agency’s response and
withholding of the requested records. See Compl. ¶ 20. The EPA
denied Beveridge’s appeal in November 2013. Compl. ¶¶ 4, 21;
see also Oct. 14, 2014 Status Report, ECF No. 26 at 1.
Beveridge then filed this suit on April 16, 2014.
On May 12, 2014, Beveridge filed the pending motion for
summary judgment. In the motion, Beveridge argued that the EPA
violated FOIA by failing to provide the HRCT and PFT data. See
Bev’s Mot., ECF No. 9 at 2. Specifically, Beveridge asserted
that no FOIA exemptions applied to the HRCT data because raw
data does not show deliberative process, and no research
privilege protecting scientific data exists. Id. at 2, 12–21.
Beveridge also argued that the PFT data is an “agency record”
over which the EPA has constructive control. Id. at 21-27. In
support of its argument, Beveridge asserted that the PFT data
“were generated under contracts with and as directed by federal
agencies” in which the benefits inured to the EPA. Id. at 23.
On June 11, 2014, the EPA filed its combined opposition and
cross-motion for summary judgment. In its motion, the EPA noted
that the HRCT data — an excel spreadsheet UC emailed to EPA
toxicologist Dr. Robert Benson — had been released to Beveridge.
See EPA’s Mot., ECF No. 16 at 1-2. Further, the EPA stated that
it has no other HRCT data. Id. at 1. Beveridge conceded that
the EPA produced all HRCT data during the course of this
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litigation. See October 10, 2014 Status Report, ECF No. 25 at 5
(“Subsequent productions have narrowed the issues in this action
to EPA’s refusal to produce PFT data.”). In addition, the EPA
argued that the PFT data is not an “agency record” under FOIA.
See EPA’s Mot., ECF No. 16 at 14-18. Specifically, the EPA
asserted that Beveridge’s constructive control argument is
without merit because it “does not have, has not reviewed, and
has not asked SRC or [UC] to review or analyze PFT data” in
connection with the Toxicological Review. See EPA’s Reply, ECF
No. 23 at 7; see also EPA’s Reply, ECF No. 23-1 (“Benson Decl.”)
¶ 10. The EPA admitted, however, that phase two of the Volpe
Contract would have included collection of the HRCT and PFT
data, “but [the] EPA did not fund phase [two] and [it] was not
involved in the collection of HRCT or PFT data by UC.” See
EPA’s Reply, ECF No. 23 at 5. Similarly, the EPA stated that it
had no involvement with the ATSDR Grant. Id. at 6. Finally,
the EPA asserted that the SRC Contract contained no reference to
PFT data, SRC and UC did not collect PFT data and SAB’s comments
did not refer to PFT data. Id. at 6-7.
On June 24, 2014, Beveridge filed its combined reply in
support of its motion for summary judgment and opposition to the
EPA’s cross-motion. See Bev’s Reply, ECF No. 17. On July 10,
2014, the EPA filed its reply. See EPA’s Reply, ECF No. 23.
The motions are now ripe for determination by the Court.
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II. STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 56, summary
judgment should be granted only if the moving party has shown
that there are no genuine issues of material fact and that it is
entitled to judgment as a matter of law. See Fed. R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C.
Cir. 2002). In determining whether a genuine issue of fact
exists, the court must view all facts in the light most
favorable to the non-moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Likewise,
in ruling on cross-motions for summary judgment, the court shall
grant summary judgment only if one of the moving parties is
entitled to judgment as a matter of law upon material facts that
are not genuinely disputed. See Citizens for Responsibility &
Ethics in Wash. v. U.S. Dep’t of Justice, 658 F. Supp. 2d 217,
224 (D.D.C. 2009) (citing Rhoads v. McFerran, 517 F.2d 66, 67
(2d Cir. 1975)).
Under FOIA, all underlying facts and inferences are
analyzed in the light most favorable to the FOIA requester; as
such, only after an agency proves that it has fully discharged
its FOIA obligations is summary judgment appropriate. Moore v.
Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996) (citing Weisberg v.
U.S. Dep’t of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983)).
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“FOIA cases typically and appropriately are decided on motions
for summary judgment.” Gold Anti-Trust Action Comm., Inc. v.
Bd. of Governors of Fed. Reserve Sys., 762 F. Supp. 2d 123, 130
(D.D.C. 2011) (citations omitted).
In considering a motion for summary judgment under FOIA,
the court must conduct a de novo review of the record. See 5
U.S.C. § 552(a)(4)(B). The court may award summary judgment
solely on the basis of information provided by the department or
agency in affidavits or declarations that describe “the
documents and the justifications for nondisclosure with
reasonably specific detail, demonstrate that the information
withheld logically falls within the claimed exemption, and are
not controverted by either contrary evidence in the record nor
by evidence of agency bad faith.” Military Audit Project v.
Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see also Vaughn v.
Rosen, 484 F.2d 820, 826–28 (D.C. Cir. 1973), cert. denied, 415
U.S. 977 (1974). Agency affidavits or declarations must be
“relatively detailed and non-conclusory.” SafeCard Servs. v.
Sec. & Exch. Comm’n, 926 F.2d 1197, 1200 (D.C. Cir. 1991)
(quotation marks omitted). Such affidavits or declarations are
accorded “a presumption of good faith, which cannot be rebutted
by purely speculative claims about the existence and
discoverability of other documents.” Id. (quotation marks
omitted).
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III. ANALYSIS
As a preliminary matter, the parties agree that the EPA
released the HRCT data to Beveridge. See October 10, 2014
Status Report, ECF No. 25 at 5. Therefore, the only issue that
the Court has to resolve is whether the PFT data is an “agency
record” under FOIA.
The FOIA applies to “agency records.” See 5 U.S.C. §
552(a)(4)(B). As both the Supreme Court and the D.C. Circuit
have repeatedly noted, while FOIA “limited access to ‘agency
records,’” it “did not provide any definition of ‘agency
records.’” See Forsham v. Harris, 445 U.S. 169, 178 (1980); see
also U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142,
(1989); Tax Analysts v. U.S. Dep't of Justice, 845 F.2d 1060,
1067 (D.C. Cir. 1988), aff'd, 492 U.S. 136 (1989); McGehee v.
CIA, 697 F.2d 1095, 1106 (D.C. Cir. 1983). In Tax Analysts, the
Supreme Court held that the term “agency records” extends only
to those documents that an agency both (1) “create[s] or obtain
[s],” and (2) “control[s] ... at the time the FOIA request [was]
made.” See Tax Analysts, 492 U.S. at 144–45; see also Burka v.
U.S. Dep’t of Health & Human Servs., 87 F.3d 508, 515 (D.C. Cir.
1996). Therefore, to qualify as an “agency record” subject to
FOIA disclosure rules, the EPA must have either created or
obtained the PFT data, and have been in control of the PFT data
at the time the FOIA request was made.
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Because the Court finds that the EPA did not create or
obtain the PFT data, direct a third party to create or obtain
the PFT data, or have a legal duty under the FOIA to seek to
obtain records of the PFT data, the PFT data is not an agency
record under FOIA. Even assuming, arguendo, that the Court
found that the EPA created or obtained the PFT data, the EPA did
not, under the Burka factors, control the PFT data at the time
the FOIA request was made.
A. The EPA Did Not Create or Obtain the PFT Data.
The record is clear that the EPA did not create or obtain
the PFT data from UC. The EPA provided two detailed
declarations, one from Dr. Deborah McKean, lead toxicologist for
the Libby site, who confirmed that the EPA does not possess or
control the PFT data. See McKean Decl., ECF No. 16-2 ¶ 31. The
other declarant, Dr. Robert W. Benson, who is one of the authors
of the EPA’s Toxicological Review, stated that the EPA “does not
possess and has not reviewed any [PFT] data for the Marysville
Cohort, from any source whatever, nor has the Agency asked any
contractor to undertake any analysis of any [PFT] data for the
Marysville Cohort.” See Benson Decl., ECF No. 23-1 at ¶ 10.
Beveridge argues that because the EPA had and released a
single HRCT excel spreadsheet, the EPA must have constructive
control of the PFT data. See Bev’s Mot., ECF No. 9 at 25-27.
Beverdige provides no evidence to support its argument.
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Instead, Beveridge makes the following unsupported blanket
statement: “if EPA controls HRCT data[,] . . . then EPA also
controls the PFT data” because HRCT and PFT are “companion”
datasets. Id. at 27. Beveridge’s leap of logic relies on its
characterization of the HRCT and PFT data as “companion data”
that were “collected as companion parts of the same study.” See
Bev’s Reply, ECF No. 17 at 1. Beveridge’s unsupported assertion
is wholly insufficient to overcome the record in this case or
the testimony of Dr. McKean and Dr. Benson who are directly
involved in the Toxicological Review. See SafeCard Servs., 926
F.2d at 1200 (“Agency affidavits are accorded a presumption of
good faith, which cannot be rebutted by ‘purely speculative
claims about the existence and discoverability of other
documents.’”) (quoting Ground Saucer Watch, Inc. v. CIA, 692
F.2d 770, 771 (D.C. Cir. 1981)).
Beveridge further argues that, because the HRCT and PFT data
are “companion” datasets and the EPA — in an email exchange with
UC — received HRCT data, the EPA is under a legal duty to obtain
the PFT data from UC. See Bev’s Reply, ECF No. 17 at 12.
Beveridge’s constructive control argument conflicts with binding
Supreme Court and D.C. Circuit precedent. Even assuming that
the EPA had a right to acquire the PFT data, which it does not,
see EPA’s Reply, ECF No. 23 at 12, the EPA has not exercised its
right. See Judicial Watch v. Fed. Hous. Fin. Agency, 646 F.3d
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924, 928 (D.C. Cir. 2011)(“Although there is no doubt that the
FHFA could consult the requested records as it conducts its
business, the problem for Judicial Watch is that no one from the
FHFA has done so. The Supreme Court held in Forsham v. Harris
that documents an agency had the right to acquire would not
become agency records subject to FOIA ‘unless and until the
right is exercised.’”). The FOIA applies to “records which have
been in fact obtained, and not records which merely could have
been obtained.” See Forsham, 445 U.S. at 185-86. By ordering
the EPA to “exercise its right of access” the Court would be
effectively compelling the EPA to create an agency record. Id.
The “FOIA imposes no duty on the agency to create records.” Id.
Simply put, to accept Beveridge’s argument would turn the
structure and purpose of the FOIA on its head. “The public
cannot learn anything about agency decisionmaking from a
document . . . neither created nor consulted” by the EPA. See
Judicial Watch, 646 F.3d at 927.
Moreover, Beveridge’s reliance on Burka to support its
constructive control argument is misplaced. The D.C. Circuit
found in Burka that the agency created the data at issue because
the agency exercised “extensive supervision and control . . .
over [the] collection and analysis of the data.” See Burka, 87
F.3d at 515. Beverdige has proffered no evidence showing that
the EPA exercised “extensive supervision and control” over the
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collection of the PFT data by UC. The facts of this case are
easily distinguishable from Burka: the EPA did not exercise
extensive supervision and control over the collection of PFT
data by UC. Dr. McKean stated in her declaration that the EPA
has not assessed or used the PFT data, has not integrated the
PFT data into its systems of records or files, and has not
relied on the PFT data in developing the Toxicological Review.
See McKean Decl., ECF No. 16-2 ¶ 31. Further, Dr. Benson stated
in his declaration that there were no discussions between the
EPA and UC concerning the PFT data. See Benson Decl., ECF No.
23-1 at ¶¶ 7, 10.
Rather than introduce countervailing facts, Beveridge
argues that the EPA is attempting to “shield [the PFT data] from
production under FOIA by allowing [the PFT data] to reside [with
UC].” See Bev’s Reply, ECF No. 18 at 13. In support of this
argument, Beveridge states that the EPA has constructive control
over the PFT data because the PFT data, under the Volpe Contract
and ATSDR Grant, “were generated for federal government
purposes, and were to be provided to and used by [the] EPA [in
its] Toxicological Assessment.” See Bev. Mot., ECF No. 9 at 26.
The Court finds this argument unpersuasive. The law is settled
that the mere fact — without extensive supervision and control
by the EPA — UC “received federal funds to finance the research
[is not] sufficient to conclude the [PFT] data were created or
15
obtained by the agency.” See Burka, 87 F.3d at 515. The EPA
cannot require UC to provide it with the PFT data UC may have
collected under the Volpe Contract, nor does the EPA have a
right to access UC’s PFT data under the ATSDR Grant. See McKean
Decl., ECF No. 16-2; Benson Decl., ECF No. 23-1.
Accordingly, because the Court finds that the EPA did not
create or obtain the PFT data, the PFT data is not an agency
record under FOIA.
B. The EPA Did Not Control the PFT Data.
Even assuming, arguendo, that the Court found that the EPA
created or obtained the PFT data, the EPA did not, under the
Burka factors, control the PFT data at the time the FOIA request
was made. Control means that “the materials have come into the
agency’s possession in the legitimate conduct of its official
duties,” see Tax Analysts, 492 U.S. at 144–45, and is determined
with regard to the four factors outlined by the D.C. Circuit in
Burka. See Burka, 87 F.3d at 515. Those factors include: (1)
the intent of the document’s creator to retain or relinquish
control over the records; (2) the ability of the agency to use
and dispose of the record as it sees fit; (3) the extent to
which agency personnel have read or relied upon the document;
and (4) the degree to which the document was integrated into the
agency's record system or files. Id. However, the third factor
— “use [of the record] — is the decisive factor” in deciding
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whether the agency controls a record under FOIA. Judicial
Watch, 646 F.3d at 928.
Although the D.C. Circuit has recently questioned whether
the Burka test is helpful in delineating whether the agency
controlled the requested material, especially since past
application of the test “reveal[ed] its considerable
indeterminacy,” see Cause of Action v. Nat. Archives and Records
Admin., 753 F.3d 210, 214-15 (D.C. Cir. 2014), the Court finds
applying the test in this case particularly easy. All four
Burka factors unambiguously favor the EPA.
First, UC intends to retain control of the PFT data until
it completes all studies using the data, which has not yet
occurred. See EPA’s Reply, ECF No. 23 at 9. Second, the EPA
does not have the ability to use and dispose of the PFT data as
it sees fit because the EPA does not have access to such data
and does not have the ability, under the ATSDR Grant or Volpe
Contract, to require UC to provide it with the PFT data. Id. at
10. Third, EPA employees have not read or relied on the PFT
data; an agency cannot rely on data it has never viewed. See
McKean Decl., ECF No. 16-2 ¶ 31. In deciding whether an agency
controls a document its employees created, the D.C. Circuit has
consistently found that “use is the decisive factor.” See
Judicial Watch Inc., 646 F.3d at 927. The Court is of the
opinion that use is decisive here. “[W]here an agency has
17
neither created nor referenced a document in the conduct of its
official duties, the agency has not exercised the degree of
control required to subject the document to disclosure under
FOIA.” Id. at 928. This factor is fatal to Beveridge’s claim.
Id. at 927. Finally, “it goes without saying that an agency
cannot integrate into its record system a document created by a
third party that none of its employees have read.” Id. at 928.
Dr. McKean and Dr. Benson have attested to the fact that the EPA
has never seen the PFT data Beveridge seeks. See e.g., Benson
Decl., ECF No. 23-1 at ¶¶ 7, 10. Therefore, the EPA did not
control the PFT data at the time the FOIA request was made.
*****
For the reasons stated above, the Court concludes that the
PFT data are not “agency records” under FOIA.
IV. CONCLUSION
For the forgoing reasons, the Court hereby DENIES
Beveridge’s motion for summary judgment and GRANTS the EPA’s
cross-motion for summary judgment. An appropriate Order
accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
January 20, 2015
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