UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

________________________________ ) BEVERIDGE & DIAMOND, P.C. , ) ) Plaintiff, ) ) v. ) Civ. Action No. 14

- 80 (EGS) ) UNITED STATES D EPA RTMENT OF ) HEALTH AND HUMAN SERVICES , ) et al. , ) ) Defendant s . ) ) MEMORANDUM OPINION Plaintiff Beveridge & Diamond, P.C. (“Beveridge”) requested information from defendant s , the United States D epa rtment 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 set s of data w ere 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 Protection2

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). B everidge 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, th e 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 Asbestos3

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 vermicul i te. 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 relati vely uncommon form of asbestos. Id. It is not a commercially viable mineral, but is instead a contaminant in the vermi culite 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 illne ss 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 of4

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 managemen t activities in Libby. Id. To support future cleanup efforts and risk related activities, the EPA is in the process of conducting a T oxicological Review of Libby amphibole asbestos (“Toxicological Review” or “Toxicological Assessment”) , which will, among other things, summarize “the potential adverse health effec ts of Libby amphibole asbestos
exposure. ” Id. The EPA released its draft T oxicological
A sses sment for external review and comment in August 2011. Id. The draft T oxicological A ssessment reviews the potential hazards, both cancer and noncancer health effects, from exposure to Libby amphibole asbestos and provides quantitative information fo r use in risk assessments. Id
. O ccupational epidemiology studies for two worksites where workers were
expo sed to Libby amphibole asbestos forms the basis of the draft
T oxicological R eview. Id
. These worksites include the mine and mill near Libby, Montana, and the vermiculite proce ssing plant in Marysville, Ohio, which produced lawn c are products using vermiculite. Id
. The cohort of workers that were exposed to Libby amphibole asbestos at the plant in Marysville, Ohio, (“Mary s ville, Ohio Cohort”) has serve d as the basis of earlier5

published, peer

- reviewed scientific studies, which the EPA relies on in its draft T oxicological R eview. Id. The final Toxicological R eview 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
managemen t 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 environmenta l contaminants.” Id
. IRIS is used to support the
EPA ’s regulatory activities. Id
. The EPA is in the process of finalizing its T oxicological R eview. Id.

C. University of Cincinnati There have been additional efforts

— parallel to, and at times related to, the EPA ’s Toxicological R eview

— 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 D epa rtment of Transportation (“DOT”). The DOT Volpe Center contracted with UC to update data on the Mary s ville, 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 asbestos6

they were exposed to. Id. The second phase studied how being exposed to asbesto s affecte d 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 hea lth
outcomes. The priority area of this research is to further conduct epidemiologic investigation of the Marysville, Ohio
C ohort, 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 Dec l
. ”)
. 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
De c l
. ¶ 5
. The grantee would then “[p]erform follow

- up medical screening of the Marysville , Ohio C ohort 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 function7

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 Dec l
. ¶ 6. The FOA required poten tial 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 Gran t . 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. Th e 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. Proced ural 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 a8

Marysville, Ohio C ohort that was the subject o f previous scientific studies.” Id . ¶¶ 1

– 2. Specifically, Beveridge requested, among other information, high resolution computed tomography (“HRCT”) data and pulmonary function test ing (“PFT”) data ; Beveridge allege d that both sets of data “ supplement and update data that have been used as a primary basis for the non

cancer portion o f a Toxicological A ssessment that is being conducted by ” the EPA . See Bev.’s Mot., ECF No. 14 at 2. During the course of this lawsuit, and i n 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 E xemptions 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 a ny records concerning PFT data and HRCT data
. See Viana Dec l
. ¶¶ 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 E xemptions 5 and 6
. Id. at 1

- 2. Further, the defendants asserted that the PFT data and HRCT data9

are not “agency records” under FOIA. See D efs.’ Reply, ECF No. 18 at 1

- 3 . Specifically, the defendants argued that Beveridge’s constructive control argument is w holly without merit because the defendants were not involved in the collection of data, do not have a right to access such data, ha ve no t obtained the data , ha ve not reviewed the data and ha ve not relied on the data or resulting studies in the development of CDC/ATSDR policy.
See Viana Dec l
. ¶¶ 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

a sserted 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 a rgued that the PFT and HRCT data are “agency record s ” over which the defendants h ave constructive control. Id. In support of its argument, Beveridge assert ed 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 determin ing 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 case s 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 motio n for summary judgm ent 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 d epa rtment 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 eviden ce 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 goo d faith, which cannot be rebutted by purely speculative claims about the existence and disco verability of other documents.” Id. ( quotation marks omitted ). III. ANALYSIS As a preliminary matter, Beveridge expressly does not challenge the defendants’ withhold ings and redactions under FOIA
E xemptions 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 wit hholding. ”)
. 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 c onceded 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 record s ” 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 ‘agency13

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 tim e 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” sub ject to FOIA disclosure rules, the defendants must have either created or obtained the data, and have be en 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 ha ve a legal duty under the FOIA to seek to obtain records of the data , the PFT and HRCT data are not

“ agency record s” 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 d efendants 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 develop ing “the study design for the research conducted under the [ATSDR Grant],” ha ve 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 co nstructive 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 rel evant to the HRCT and PFT data. See e.g. , Bev’s Reply, ECF No. 19 at 9. Beveridge’s allegations misunderstand the p ersonal knowledge requ irements 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 Safe Card 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 th e 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, t o date, the draft manuscript has not been published. See Viana Decl. ¶¶ 10, 17. Until the draft16

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, 6 92 F.2d 770, 771 (D.C. Cir. 198 1) ). 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. Ha rris that documents an agency had the right to acquire would not become agency records subject to FOIA ‘unless an d until the right is exercised. ’ ”)
. The FOIA applies to “records which have been in fact obtained, and not records which merely could have bee n obtained.” See Forsham, 445 U.S. at 185

- 86. By ordering the defendants to17

“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 anyth ing about agency decisionmaking from a document
. . . neither created nor consulted” by the d efendants
. 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 evidenc e 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 contro l over th e 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 the18

collection of the data, had no involvement in developing “the study design for the research conducted under the [ATSDR Grant],” ha ve 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 V olpe Contract and ATSDR Grant, were generated for federal government purposes, and were to be provided to and used by the EPA in its Toxicological A ssessment. 2
See Bev ’s Reply, ECF No. 1 9 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 creat ed 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 Beverid ge spent considerable effort in this case attempting to convince this Court that the EPA , wh ich 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 cas e 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 record s” 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 rega rd 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 o f 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 re cord]

— is the20

decisive factor” in deciding whether the agenc y 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 unambiguo usly favor the defendants
. First, UC intends to retain control of the data until it completes all studies using the da ta and any related publications, which, to date, has not yet occurred. See Viana
Dec l
. ¶ ¶ 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 hav e the ability, under the ATSDR Grant or Volpe Contract, to require UC
t o 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.3d21

at 927. The Court is of the opinion that use is decisive here. “[W] here an agency has neither created no r 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 dis closure under FOIA. ” Id. at 928. This factor is fata l 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 no ne 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 reque st was made.

** *** For the reasons stated above , the Court concludes that the
PFT and HRCT data are not “ agency record s” 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 M emorandum Opinion
. SO ORDERED. Signed: Emmet G. Sullivan

United States District Judge March 3 0 , 2015