85 F. Supp. 3d 230
D.D.C.2015Background
- Beveridge & Diamond, P.C. submitted a FOIA request to HHS/CDC/ATSDR seeking HRCT and pulmonary function test (PFT) data from a University of Cincinnati (UC) study of a Marysville, Ohio worker cohort related to Libby amphibole asbestos.
- UC conducted research under a DOT contract and an ATSDR grant; UC’s grant application included a data-sharing plan promising to make de-identified data available to government agencies after study completion/publication.
- CDC/ATSDR produced over 300 pages in response but redacted some material under FOIA Exemptions 5 and 6 and stated they did not possess the HRCT and PFT datasets at issue.
- Beveridge argued the datasets are “agency records” because the agencies had constructive control (including asserted rights of access and federal funding of the research) and thus must produce them under FOIA.
- Defendants submitted declarations (FOIA officers) stating they never obtained, reviewed, or relied on the UC datasets, did not supervise collection, and lacked a present right to the data until UC publishes its manuscript.
- The court concluded the datasets are not "agency records" because the agencies did not create or obtain them and did not control or use them when the FOIA request was made; it granted summary judgment for defendants and denied Beveridge’s cross-motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether HRCT/PFT datasets are "agency records" under FOIA | Datasets were generated for federal purposes under federal contracts/grants and agencies had constructive control/right of access, so FOIA applies | Agencies never created/obtained the data, never had possession or access, never relied on or used the data, and had no present right to require UC to turn it over | Held: Not agency records; defendants entitled to summary judgment |
| Whether agency had constructive control via supervision or funding | Funding and collaboration created constructive control akin to agency creation/possession | Mere funding or expectation of later access does not establish control absent extensive supervision/use | Held: Funding alone insufficient; no extensive supervision or use shown |
| Whether declarations from agency FOIA officers suffice to show absence of records | Beveridge challenged personal knowledge of declarants | Declarations from officials supervising FOIA processing and knowledgeable about data-sharing and possession are sufficient and entitled to presumption of good faith | Held: Declarations adequate; plaintiff’s speculation insufficient to rebut |
| Whether courts can compel agency to exercise anticipated right to obtain third-party data | Beveridge urged court to require agencies to obtain the data | FOIA does not impose a duty to create or acquire records; agencies must have actually obtained/used records for FOIA to apply | Held: Court will not compel agency to obtain/create records; FOIA covers only existing agency records |
Key Cases Cited
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment standard)
- Forsham v. Harris, 445 U.S. 169 (documents not agency records unless obtained by agency)
- U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136 (agency records require creation/obtainment and control)
- Burka v. U.S. Dep’t of Health & Human Servs., 87 F.3d 508 (D.C. Cir.) (extensive supervision/control can make third-party data agency records)
- Judicial Watch v. Fed. Hous. Fin. Agency, 646 F.3d 924 (no FOIA obligation where agency had right but did not exercise it)
- SafeCard Servs. v. Sec. & Exch. Comm’n, 926 F.2d 1197 (agency affidavits in FOIA cases entitled to presumption of good faith)