78 F. Supp. 3d 199
D.D.C.2015Background
- Beveridge & Diamond submitted a FOIA request to EPA (June 2013) seeking data used in EPA’s Toxicological Review of Libby amphibole asbestos, specifically HRCT (high resolution CT) and PFT (pulmonary function testing) data for the Marysville, Ohio cohort.
- EPA produced numerous documents and released the HRCT spreadsheet but withheld some HRCT material under FOIA exemptions and stated it did not possess PFT data.
- The PFT data had been collected by University of Cincinnati researchers under separate federal agreements (DOT Volpe contract phase two and an ATSDR grant), and UC subcontracted with SRC in connection with EPA work, but EPA did not fund or direct the PFT collection.
- Beveridge argued EPA had constructive control of the PFT data (companion to released HRCT) and thus must produce it under FOIA. EPA countered it neither created, obtained, reviewed, nor directed collection of PFT data and had no right or occasion to obtain it.
- The district court resolved cross-motions for summary judgment, focusing solely on whether PFT data were "agency records" under FOIA. The court denied Beveridge’s motion and granted EPA’s cross-motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the PFT data are "agency records" under FOIA (i.e., created/obtained and controlled by EPA) | Beveridge: PFTs are "companion" to HRCT; EPA had constructive control and a duty to obtain them, so they are agency records. | EPA: It did not create/obtain/review/use PFT data, did not fund or direct their collection, and had no access or right that was exercised. | Held: PFT data are not agency records; EPA did not create/obtain or control them. |
Key Cases Cited
- Forsham v. Harris, 445 U.S. 169 (agency does not become owner of third-party records merely by right to obtain them)
- U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136 (FOIA covers documents an agency creates or obtains and controls at time of request)
- Burka v. U.S. Dep’t of Health & Human Servs., 87 F.3d 508 (D.C. Cir.) (four-factor test for agency control; extensive supervision/control can make third-party data agency records)
- Judicial Watch v. Fed. Hous. Fin. Agency, 646 F.3d 924 (D.C. Cir.) (use/control is decisive; right to obtain records does not make them agency records unless exercised)