Beveridge & Diamond, P.C. v. United States Department of Health and Human Services

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
BEVERIDGE & DIAMOND, P.C., )
)
Plaintiff, )
)
v. ) Civ. Action No. 14-80 (EGS)
)
UNITED STATES DEPARTMENT OF )
HEALTH AND HUMAN SERVICES, )
et al., )
)
Defendants. )
)

MEMORANDUM OPINION

Plaintiff Beveridge & Diamond, P.C. (“Beveridge”) requested

information from defendants, the United States Department of

Health and Human Services (“HHS”), Centers for Disease Control

and Prevention (“CDC”) and the Agency for Toxic Substances and

Disease Registry (“ATSDR”) (collectively, the “defendants”),

under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552.

In response to Beveridge’s FOIA request, the defendants released

some records to Beveridge but claimed that two sets of data were

not in its possession, and thus not an “agency record” under

FOIA. Beveridge challenges the defendants’ claim that it does

not possess the data.

In support of its argument, Beveridge relies heavily on the

record developed in a related case before this Court – Beveridge

& Diamond, P.C. v. United States Environmental Protection
Agency, 14-cv-631, 2015 WL 251592 (D.D.C. Jan. 20, 2015). In

that case, involving the same plaintiff and substantially

similar claims, this Court held that the Environmental

Protection Agency (“EPA”) did not create or obtain the data at

issue in this case; therefore, the data was not an “agency

record” under FOIA. Beveridge & Diamond, P.C. v. United States

Environmental Protection Agency, No. 14-cv-631, 2015 WL 251592

at *4 (D.D.C Jan. 20, 2015). Beveridge did not appeal this

Court’s decision in Beveridge & Diamond, P.C. v. United States

Environmental Protection Agency.

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 GRANTS the defendants’ motion and

DENIES Beveridge’s cross-motion.

I. BACKGROUND

Because the factual record in this case is virtually

identical to the related case Beveridge & Diamond, P.C. v.

United States Environmental Protection Agency, and Beveridge

places considerable reliance on those facts, the Court recites

the background facts as found in that case. In addition, the

Court supplements the factual record, when necessary, based on

the pleadings in this case.

A. Libby Amphibole Asbestos
2
 In 1881, gold miners discovered vermiculite in Libby,

Montana. Beveridge & Diamond, P.C., 2015 WL 251592 at *1.

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. Id. While in operation, the Libby mine may

have produced more than 70 percent of the world’s supply of

vermiculite. Id. 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. 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

3
Libby regarding possible ongoing exposures to asbestos fibers as

a result of historical mining, processing, and exportation of

asbestos-containing vermiculite. Id. 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. 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. Occupational

epidemiology studies for two worksites where workers were

exposed to Libby amphibole asbestos forms the basis of the draft

Toxicological Review. Id. 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 plant in Marysville, Ohio,

(“Marysville, Ohio Cohort”) has served as the basis of earlier
4
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. at *2. 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. IRIS is used to support the

EPA’s regulatory activities. Id. The EPA is in the process 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”). Id. The Volpe

Contract assigned seven tasks to be performed in two phases.

Id. The first phase involved scientific assessment of the ways

in which workers were exposed to asbestos and how much asbestos

5
they were exposed to. Id. The second phase studied how being

exposed to asbestos affected the workers’ health.

HHS. In 2009, CDC/ATSDR posted a Funding Opportunity

Announcement (“FOA”) seeking to “support investigator initiated

research that will expand and advance our understanding of

exposures to the Libby amphibole and the resulting health

outcomes. The priority area of this research is to further

conduct epidemiologic investigation of the Marysville, Ohio

Cohort, using newly obtained worker exposure data and more

comprehensive medical testing. The results of the research

conducted under this announcement will add to the body of

scientific knowledge about the natural history of health

outcomes associated with exposure to Libby amphibole.” See

Defs.’ Reply, ECF No. 18 at 3; Declaration of Bruno Viana, ECF

No. 18-1 at ¶ 5 (“Viana Decl.”). Among other things, the FOA

anticipated that the grantee would use “an existing dataset,

identify, locate, and recruit members of the cohort of

Marysville, Ohio workers exposed to the Libby amphibole.” Viana

Decl. ¶ 5. The grantee would then “[p]erform follow-up medical

screening of the Marysville, Ohio Cohort using chest x-rays,

spirometry, a symptom questionnaire, and other medical testing

as appropriate, including, but not limited to high-resolution

computed tomography of the chest and other pulmonary function

6
tests, such as diffusion capacity and lung volume measurements.”

Id.

The UC was awarded the grant and conducted its research in

2009-2011 (“ATSDR Grant”). See Viana Decl. ¶ 6. The FOA

required potential grantees to submit a data sharing plan that

described “how the final research data will be shared or explain

why data sharing is not possible.” Id. ¶ 9. UC’s grant

application included a resource sharing plan stating that

“[a]fter completion of the study and any related publications,

researchers will make available exposure data and human health

data without personal identifiers to government agencies as

requested.” Id. ¶ 10. This was incorporated by reference into

the ATSDR Grant. Id. To date, UC has “at least one anticipated

publication using the data collected under the [ATSDR Grant].”

Defs.’ Reply, ECF No. 18 at 5; see also Viana Decl. ¶ 16. The

UC study will be “submitted for publication in the near future

and will then go through the peer-review process.” Defs.’

Reply, ECF No. 18 at 5; see also Viana Decl. ¶ 16.

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 ¶ 7. In June 2013,

Beveridge filed a FOIA request with the defendants for data and

documents “related to follow-up work and updates to a

7
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 “supplement and

update data that have been used as a primary basis for the non-

cancer portion of a Toxicological Assessment that is being

conducted by” the EPA. See Bev.’s Mot., ECF No. 14 at 2.

During the course of this lawsuit, and in response to

Beveridge’s FOIA request, the defendants produced over three

hundred pages of responsive records. See Declaration of

Katherine S. Norris, ECF No. 13-3 ¶¶ 19-21 (“Norris Decl.”).

The defendants, however, redacted in part several pages of

records under FOIA Exemptions for deliberative process and

personal privacy. Id.; see also 5 U.S.C. §§ 552(b)(5)–(6).

Further, the defendants claimed that it did not possess any

records concerning PFT data and HRCT data. See Viana Decl. ¶¶

12-17.

On April 21, 2014, the defendants filed the pending motion

for summary judgment. See Defs.’ Mot., ECF No. 13. In the

motion, the defendants argued that they had conducted an

adequate search and that all responsive documents were produced

or properly redacted under FOIA Exemptions 5 and 6. Id. at 1-2.

Further, the defendants asserted that the PFT data and HRCT data
8
are not “agency records” under FOIA. See Defs.’ Reply, ECF No.

18 at 1-3. Specifically, the defendants argued that Beveridge’s

constructive control argument is wholly without merit because

the defendants were not involved in the collection of data, do

not have a right to access such data, have not obtained the

data, have not reviewed the data and have not relied on the data

or resulting studies in the development of CDC/ATSDR policy.

See Viana Decl. ¶¶ 12-17. Thus, the defendants did not have

constructive control over the PFT and HRCT data. Id.

On May 12, 2014, Beveridge filed its combined opposition

and cross-motion for summary judgment. In its motion, Beveridge

asserted that the defendants violated FOIA by failing to provide

the HRCT and PFT data. See Bev’s Mot., ECF No. 14 at 3.

Specifically, Beveridge argued that the PFT and HRCT data are

“agency records” over which the defendants have constructive

control. Id. In support of its argument, Beveridge asserted

that the PFT and HRCT data “were collected by the [UC] at the

direction of and pursuant to contracts with federal agencies for

federal use, including ATSDR’s efforts to generate data

regarding the potential health effects of Libby amphibole

asbestos pursuant to its statutory obligations under CERCLA §

104(i)(1)(E) & (i)(5)(A), 42 U.S.C. § 9604(i)(1)(E) &

(i)(5)(A).” Id.

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 On May 29, 2014, the defendants filed their combined reply

in support of its motion for summary judgment and opposition to

Beveridge’s cross-motion. See Defs.’ Reply, ECF No. 17. On

June 6, 2014, Beveridge filed its reply. See Bev’s Reply, ECF

No. 19. The motions are now ripe for determination by the

Court.

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)).
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 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)).

“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.
11
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).

III. ANALYSIS

As a preliminary matter, Beveridge expressly does not

challenge the defendants’ withholdings and redactions under FOIA

Exemptions 5 and 6. See Bev’s Mot. ECF No 14 at 2 (“In order to

limit the issues before the Court and focus on the most

important responsive materials, Plaintiff has determined not to

challenge CDC/ATSDR’s redactions and withholding.”). The Court

therefore treats as conceded the defendants’ motion for summary

judgment with respect to FOIA Exemptions 5 and 6. See, e.g.,

Jewett v. U.S. Dep’t of State, No. 11–cv–1852, 2013 WL 550077,

at *9 (D.D.C. Feb. 14, 2013) (treating as conceded defendants’

reliance on FOIA exemption where plaintiff “offers no

rebuttal”). The only remaining issue that the Court has to

resolve is whether the PFT and HRCT data are “agency records”

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
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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 defendants must have either created

or obtained the data, and have been in control of the data at

the time the FOIA request was made.

Because the Court finds that the defendants did not create

or obtain the data or have a legal duty under the FOIA to seek

to obtain records of the data, the PFT and HRCT data are not

“agency records” under FOIA. Even assuming, arguendo, that the

Court found that the defendants created or obtained the data,

the defendants did not, under the Burka factors, control the

data at the time the FOIA request was made.

A. The Defendants Did Not Create or Obtain the Data.

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 The record is clear that the defendants did not create or

obtain the data from UC. The defendants provided two detailed

declarations, one from Katherine Norris, FOIA Officer for the

CDC and ATSDR, who confirmed that the defendants do not possess

or control the data. See Norris Decl. ¶ 16. The other

declarant, Bruno Viana, Deputy FOIA Officer for CDC and ATSDR,

stated that the defendants never had the study data in their

possession, had no involvement in the collection of the data,

had no involvement in developing “the study design for the

research conducted under the [ATSDR Grant],” have not asked “for

the data and has no plans to obtain the data in the future,” and

“ha[ve] not relied on the data or resulting studies in the

development of any CDC/ATSDR policy.” See Viana Decl. ¶¶ 12-17.1

Beveridge argues that the defendants have constructive

control of the PFT and HRCT data. See Bev’s Mot., ECF No. 14 at

1 Beveridge rejects both declarations, claiming that the
declarants lack personal knowledge relevant to the HRCT and PFT
data. See e.g., Bev’s Reply, ECF No. 19 at 9. Beveridge’s
allegations misunderstand the personal knowledge requirements
for FOIA declarations. The knowledge requirement of Federal
Rule of Civil Procedure 56(c) can be satisfied, in FOIA cases,
via the declaration of an agency official knowledgeable in the
way information is gathered. See SafeCard Servs., 926 F.2d at
1201; Meeropol v. Meese, 790 F.2d 942, 951 (D.C. Cir. 1986)
(approving reliance upon affidavit of agency employee
responsible for supervising search, although he necessarily
relied upon information provided by staff members who actually
performed search). Reliance upon an affidavit of an employee
supervising a FOIA search is appropriate, even when the employee
relied on information provided by those who actually performed
the search. SafeCard Servs., 926 F.2d at 1201.
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3. Beveridge bases much of its constructive control argument on

the purported fact CDC/ASTDR has a right of access to the

research data. Specifically, Beveridge asserts that Dr. Vikas

Kapil, a Medical Officer at the National Center for

Environmental Health within the CDC, “surely has access to the

underlying data and could have received it on request.” Id. at

18. Beverdige’s entire argument, however, is based on pure

speculation, unsupported by the factual record in this case.

Dr. Kapil, among other things, served as a co-author and

edited a draft manuscript written by UC. See Defs.’ Reply, ECF

No. 18 at 8. The record is clear that Dr. Kapil never had

access to the PFT and HRCT data. Viana Decl. ¶ 8. In addition,

the defendants – in response to Beveridge’s FOIA request –

processed the documents Dr. Kapil reviewed, and Beveridge has

not challenged the defendants’ response, including the

defendants’ withholdings and redactions under FOIA Exemptions 5

and 6. See Bev’s Mot. ECF No 14 at 2 Specifically, the draft

manuscript was processed and withheld by the defendants under

FOIA Exemption 5, which Beveridge does not challenge; thus, as

previously determined, the Court treats as conceded the

defendants’ motion for summary judgment with respect to FOIA

Exemption 5. Id. Further, to date, the draft manuscript has

not been published. See Viana Decl. ¶¶ 10, 17. Until the draft

15
manuscript is accepted for publication and published, CDC/ATSDR

does not have a right of access to the data. Id.

In sum, Beveridge’s unsupported assertion that Dr. Kapil has

access to the data or can request such data is wholly

insufficient to overcome the record in this case or the

testimony of Ms. Norris and Mr. Viana. 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)).

Even assuming that the defendants had a right to acquire the

PFT and HRCT data, which it does not, see Viana Decl. ¶¶ 10, 17,

the defendants have not exercised that right. See Judicial

Watch v. Fed. Hous. Fin. Agency, 646 F.3d 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 defendants to
16
“exercise [their] right of access” the Court would be

effectively compelling the defendants 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. See

Beveridge & Diamond, P.C., 2015 WL 251592 at *5. “The public

cannot learn anything about agency decisionmaking from a

document . . . neither created nor consulted” by the defendants.

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 defendants exercised “extensive supervision and control”

over the collection of the PFT and HRCT data by UC. The facts

of this case are easily distinguishable from Burka: the

defendants did not exercise extensive supervision and control

over the collection of PFT and HRCT data by UC. Ms. Norris

confirmed in her declaration that the defendants do not possess

or control the data. See Norris Decl. ¶ 16. Further, Mr. Viana

stated in his declaration that the defendants never had the

study data in their possession, had no involvement in the
17
collection of the data, had no involvement in developing “the

study design for the research conducted under the [ATSDR

Grant],” have not asked “for the data and has no plans to obtain

the data in the future,” and “ha[ve] not relied on the data or

resulting studies in the development of any CDC/ATSDR policy.”

See Viana Decl. ¶¶ 12-17.

Rather than introduce countervailing facts, Beveridge

argues that the defendants had constructive control over the

data because the 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.2

See Bev’s Reply, ECF No. 19 at 1-2. The Court finds this

argument unpersuasive. The law is settled that the mere fact —

without extensive supervision and control by the defendants — UC

“received federal funds to finance the research [is not]

sufficient to conclude the data were created or obtained by the

agency.” See Burka, 87 F.3d at 515. The defendants cannot

require UC to provide them with the data UC may have collected

under the Volpe Contract, nor do the defendants have a right to

2 Beveridge spent considerable effort in this case attempting to
convince this Court that the EPA, which is not a party in this
case, obtained the data at issue. See e.g., Bev’s Reply, ECF
No. 19 at 4. The Court – in a related case in which the EPA was
a party – rejected the identical arguments Beveridge makes in
this case concerning the EPA. Beveridge & Diamond, P.C., 2015
WL 251592.
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access UC’s data under the ATSDR Grant until the draft

manuscript is accepted for publication and published. See Viana

Decl. ¶¶ 10, 17. To date, the draft manuscript has not been

published. See id.

Accordingly, because the Court finds that the defendants

did not create or obtain the data, the PFT and HRCT data are not

“agency records” under FOIA.

B. The Defendants Did Not Control the Data.

Even assuming, arguendo, that the Court found that the

defendants created or obtained the data, the defendants did not,

under the Burka factors, control the 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

19
decisive factor” in deciding 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 defendants.

First, UC intends to retain control of the data until it

completes all studies using the data and any related

publications, which, to date, has not yet occurred. See Viana

Decl. ¶¶ 10, 17. Second, the defendants do not have the ability

to use and dispose of the data as they see fit because the

defendants do not have access to such data and do not have the

ability, under the ATSDR Grant or Volpe Contract, to require UC

to provide them with the data until the draft manuscript is

accepted for publication and published. Id. ¶¶ 10, 17. Third,

the defendants’ employees have not read or relied on the data;

an agency cannot rely on data it has never viewed. Id. ¶¶ 12-

17. 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
20
at 927. The Court is of the opinion that use is decisive here.

“[W]here an agency has 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. Ms. Norris and Mr. Viana have attested

to the fact that the defendants have never seen the data

Beveridge seeks. See e.g., Viana Decl. ¶¶ 12-17; Norris Decl. ¶

16. Therefore, the defendants did not control the data at the

time the FOIA request was made.

*****

For the reasons stated above, the Court concludes that the

PFT and HRCT data are not “agency records” under FOIA.

IV. CONCLUSION

For the forgoing reasons, the Court hereby GRANTS the

defendants’ motion for summary judgment and DENIES Beveridge’s

cross-motion for summary judgment. An appropriate Order

accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan
United States District Judge
March 30, 2015

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