UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

________________________________

 )

BEVERIDGE & DIAMOND, P.C., )

 )

 Plaintiff, )

 )

v. ) Civ. Action No. 14-631 (EGS)

 )

UNITED STATES ENVIRONMENTAL )

PROTECTION AGENCY, ) 

 )

 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
2

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 naturallyoccurring 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
3

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 
4

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 
5

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). 
6

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 
7

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 
8

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. 
9

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)). 
10

“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). 
11

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. 
12

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. 
13

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 
14

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 
15

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 
16

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 
17

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 
18

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