Beveridge & Diamond, P.C. v. EPA, No. 14-631, 2015 WL 251592 (D.D.C. Jan. 20, 2015) (Sullivan, J.)

Beveridge & Diamond, P.C. v. EPA, No. 14-631, 2015 WL 251592 (D.D.C. Jan. 20, 2015) (Sullivan, J.)

Re: Request for certain data concerning workers exposed to asbestos

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

• Procedural Requirements, Agency Records:  "[T]he Court finds that [because] the EPA did not create or obtain the [pulmonary function testing ("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."  The court notes that defendant's declarants "confirmed that the EPA does not possess or control the PFT data."  Additionally, the court finds that "[plaintiff's] unsupported assertion is wholly insufficient to overcome the record."  Finally, the court finds that "[e]ven assuming that the EPA had a right to acquire the PFT data, which it does not, . . . the EPA has not exercised its right." (emphasis omitted)
  
  "Even assuming, arguendo, that the Court found that the EPA created or obtained the PFT data, the EPA did not . . . control the PFT data at the time the FOIA request was made."  The court finds that "[f]irst, [a university] intends to retain control of the PFT data until it completes all studies using the data, which has not yet occurred."  "Second, the EPA does not have the ability to use and dispose of the PFT data as it sees fit."  "Third, EPA employees have not read or relied on the PFT 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.'"