Beveridge & Diamond, P.C. v. HHS, No. 14-80, 2015 WL 1413029 (D.D.C. Mar. 30, 2015) (Sullivan, J.)

Beveridge & Diamond, P.C. v. HHS, No. 14-80, 2015 WL 1413029 (D.D.C. Mar. 30, 2015) (Sullivan, J.)

Re: Request for records concerning follow-up work and updates to Marysville, Ohio Cohort which was subject of previous scientific studies

Disposition: Granting defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment

• Exemptions 5 and 6:  "[Plaintiff] expressly does not challenge the defendants' withholdings and redactions under FOIA Exemptions 5 and 6."  "The Court therefore treats as conceded the defendants' motion for summary judgment with respect to FOIA Exemptions 5 and 6."
   
• Procedural Requirements, Agency Records:  "[T]he Court finds that the defendants did not create or obtain the data [at issue], [and, therefore,] the . . . data [is] not [an] 'agency record[]' under FOIA."  The court finds that "[t]he record is clear that the defendants did not create or obtain the data."  "[Plaintiff's] unsupported assertion that [defendant] has access to the data or can request such data is wholly insufficient to overcome the record in this case or the testimony of [defendant's declarants]."  "Even assuming that the defendants had a right to acquire the . . . data, which it does not, . . . the defendants have not exercised that right."  "By ordering the defendants to 'exercise [their] right of access' the Court would be effectively compelling the defendants to create an agency record."  Additionally, the court finds that "[t]he law is settled that the mere fact—without extensive supervision and control by the defendants—[the researching entity] 'received federal funds to finance the research [is not] sufficient to conclude the data were created or obtained by the agency.'"  Finally, the court finds that "defendants did not control the data at the time the FOIA request was made."  "First, [the researching entity] 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."  "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 . . . to require [the researching entity] to provide them with the data until the draft manuscript is accepted for publication and published."  "Third, the defendants' employees have not read or relied on the data; an agency cannot rely on data it has never viewed."  "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.'"