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 
2

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
3

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
4

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 
5

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 
6

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 
7

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 
8

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 noncancer 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 
9

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.
10

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)). 
11

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. 
12

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 
13

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.
14

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.
15

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 
16

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 
17

“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 
18

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. 
19

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 
20

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 
21

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