Case Detail

FOIA Project Annotation: In a case parallel to one he decided in January, Judge Emmet Sullivan has ruled that data compiled by the University of Cincinnati pursuant to funding from the Department of Transportation and the Department of Health and Human Services' Centers for Disease Control and Prevention and Agency for Toxic Substances and Disease Registry to study the effects on workers of Libby Amphibole Asbestos are not agency records of HHS. The law firm of Beveridge & Diamond requested research on Libby Amphibole Asbestos conducted by UC, particularly high resolution computer tomography data and pulmonary function testing data. Beveridge argued that HHS had constructive control of the UC records because the government "surely has access to the underlying data and could have received it on request." Sullivan indicated that HHS had withheld the draft manuscript under Exemption 5 (privileges). He noted that "until the draft manuscript is accepted for publication and published [HHS] does not have a right of access to the data." He then observed that "even assuming that the defendants had a right to acquire the PFT and HRCT data, which it does not, the defendants have not exercised that right." He added that "by ordering the defendants to 'exercise [their] right of access' the Court would be effectively compelling the defendants to create an agency record." Beveridge argued that "the defendants had constructive control over the data because the data, under the [DOT and HHS] grants were generated for federal government purposes and were to be provided to and used by the EPA in its Toxicological Assessment." Sullivan explained that "the law is settled that the mere fact â€"without extensive supervision and control by the defendantsâ€"UC 'received federal funds to finance its research [is not] sufficient to conclude the data were created or obtained by the agency.' The defendants cannot require UC to provide them with the data UC may have collected under the [DOT] contract, nor do the defendants have a right to access UC's data under the [HHS] grant until the draft manuscript is accepted for publication and published. To date, the draft manuscript has not been published."
Issues: Agency Record - Constructive possession, Exemption 5 - Privileges

Date Filed	Doc #	Docket Text
2014-01-21	1	COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0090-3596996) filed by BEVERIDGE & DIAMOND, P.C.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Civil Cover Sheet, # 7 Summons U.S. Department of Health and Human Services, # 8 Summons Centers for Disease Control and Prevention, # 9 Summons Agency for Toxic Substances and Disease Registry, # 10 Summons U.S. Attorney General, # 11 Summons U.S. Attorney for the District of Columbia)(Barker, David) (Entered: 01/21/2014)
2014-01-21	2	Corporate Disclosure Statement by BEVERIDGE & DIAMOND, P.C.. (Barker, David) (Entered: 01/21/2014)
2014-01-21		Case Assigned to Judge Emmet G. Sullivan. (sth, ) (Entered: 01/22/2014)
2014-01-22	3	ELECTRONIC SUMMONS (5) Issued as to AGENCY FOR TOXIC SUBSTANCES AND DISEASE REGISTRY, CENTERS FOR DISEASE CONTROL AND PREVENTION, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons)(sth, ) (Entered: 01/22/2014)
2014-01-23	4	NOTICE of Appearance by Jayni Anita Lanham on behalf of All Plaintiffs (Lanham, Jayni) (Entered: 01/23/2014)
2014-01-24	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES served on 1/23/2014 (Barker, David) (Entered: 01/24/2014)
2014-01-24	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. CENTERS FOR DISEASE CONTROL AND PREVENTION served on 1/23/2014 (Barker, David) (Entered: 01/24/2014)
2014-01-24	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. AGENCY FOR TOXIC SUBSTANCES AND DISEASE REGISTRY served on 1/23/2014 (Barker, David) (Entered: 01/24/2014)
2014-01-24	8	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 01/23/2014. (Barker, David) (Entered: 01/24/2014)
2014-01-24	9	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 1/23/2014. Answer due for ALL FEDERAL DEFENDANTS by 2/22/2014. (Barker, David) (Entered: 01/24/2014)
2014-01-28	10	NOTICE of Appearance by Judith A. Kidwell on behalf of AGENCY FOR TOXIC SUBSTANCES AND DISEASE REGISTRY, CENTERS FOR DISEASE CONTROL AND PREVENTION, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Kidwell, Judith) (Entered: 01/28/2014)
2014-02-24	11	ANSWER to Complaint by AGENCY FOR TOXIC SUBSTANCES AND DISEASE REGISTRY, CENTERS FOR DISEASE CONTROL AND PREVENTION, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES.(Kidwell, Judith) (Entered: 02/24/2014)
2014-02-28		MINUTE ORDER directing the parties to file a joint proposed recommendation for further proceedings by no later than March 14, 2014. Signed by Judge Emmet G. Sullivan on February 28, 2014. (lcegs4) (Entered: 02/28/2014)
2014-02-28		Set/Reset Deadlines:Joint Recommendation due by 3/14/2014 (mac) (Entered: 02/28/2014)
2014-03-14	12	NOTICE Joint Proposed Schedule for Further Proceedings by BEVERIDGE & DIAMOND, P.C. (Attachments: # 1 Text of Proposed Order)(Barker, David) (Entered: 03/14/2014)
2014-03-21		MINUTE ORDER. In light of the parties' joint proposed schedule for further proceedings, it is hereby ORDERED that defendants shall provide a final response to the June 17, 2013 FOIA request by no later than March 21, 2014; the government shall file any dispositive motions by no later than April 21, 2014; plaintiff shall file its response and, if applicable, any cross motions by no later than May 12, 2014; the defendant shall file its reply, and, if applicable, response to any cross motion by no later than May 28, 2014; plaintiff shall file its reply in support its cross motion, if any, by no later than June 9, 2014. SO ORDERED. Signed by Judge Emmet G. Sullivan on March 21, 2014. (lcegs4) (Entered: 03/21/2014)
2014-03-24		Set/Reset Deadlines: Defendant's Response to 6/17/13 FOIA letter due by 3/21/2014. Government Dispositive Motions due by 4/21/2014. Plaintiff's Response and Cross Motions due by 5/12/2014. Defendant's Reply and Cross Motions due by 5/28/2014. Plaintiff's Reply In Support of Cross Motion due by 6/9/2014. (mac) (Entered: 03/24/2014)
2014-04-21	13	MOTION for Summary Judgment by AGENCY FOR TOXIC SUBSTANCES AND DISEASE REGISTRY, CENTERS FOR DISEASE CONTROL AND PREVENTION, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration Katherine Norris, # 4 Exhibit A, # 5 Exhibit B, # 6 Exhibit C, # 7 Exhibit D, # 8 Exhibit E, # 9 Exhibit F, # 10 Exhibit G, # 11 Exhibit H, # 12 Text of Proposed Order Granting Defendants Summary Judgment)(Kidwell, Judith) (Entered: 04/21/2014)
2014-05-12	14	Memorandum in opposition re 13 MOTION for Summary Judgment and Cross-Motion for Summary Judgment filed by BEVERIDGE & DIAMOND, P.C.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Text of Proposed Order)(Barker, David) Modified event title on 5/13/2014 (znmw, ). (Entered: 05/12/2014)
2014-05-12	15	Cross MOTION for Summary Judgment by BEVERIDGE & DIAMOND, P.C. (See Docket Entry 14 to view document). (znmw, ) (Entered: 05/13/2014)
2014-05-28	16	Consent MOTION for Extension of Time to File Reply and Opposition by AGENCY FOR TOXIC SUBSTANCES AND DISEASE REGISTRY, CENTERS FOR DISEASE CONTROL AND PREVENTION, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Attachments: # 1 Text of Proposed Order)(Kidwell, Judith) (Entered: 05/28/2014)
2014-05-29	17	REPLY to opposition to motion re 13 MOTION for Summary Judgment filed by AGENCY FOR TOXIC SUBSTANCES AND DISEASE REGISTRY, CENTERS FOR DISEASE CONTROL AND PREVENTION, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. (Kidwell, Judith) (Entered: 05/29/2014)
2014-05-29	18	Memorandum in opposition to re 15 MOTION for Summary Judgment filed by AGENCY FOR TOXIC SUBSTANCES AND DISEASE REGISTRY, CENTERS FOR DISEASE CONTROL AND PREVENTION, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. (Attachments: # 1 Declaration, # 2 Statement of Facts, # 3 Text of Proposed Order)(Kidwell, Judith) (Entered: 05/29/2014)
2014-05-30		MINUTE ORDER granting 16 defendants' motion for one day extension of time. Defendants shall file their combined reply in support of their motion for summary judgment and opposition to plaintiff's cross motion by no later than May 29, 2014 Signed by Judge Emmet G. Sullivan on May 30, 2014. (lcegs4) (Entered: 05/30/2014)
2014-06-09	19	REPLY to opposition to motion re 15 MOTION for Summary Judgment filed by BEVERIDGE & DIAMOND, P.C.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Barker, David) (Entered: 06/09/2014)
2014-07-11	20	NOTICE OF SUBSTITUTION OF COUNSEL by Shannon L. Fagan on behalf of AGENCY FOR TOXIC SUBSTANCES AND DISEASE REGISTRY, CENTERS FOR DISEASE CONTROL AND PREVENTION, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES Substituting for attorney Judith Kidwell (Fagan, Shannon) (Entered: 07/11/2014)
2014-10-31	21	NOTICE OF WITHDRAWAL OF APPEARANCE as to AGENCY FOR TOXIC SUBSTANCES AND DISEASE REGISTRY, CENTERS FOR DISEASE CONTROL AND PREVENTION, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. Attorney Shannon L. Fagan terminated. (Fagan, Shannon) (Entered: 10/31/2014)
2014-11-25	22	NOTICE of Appearance by Marina Utgoff Braswell on behalf of AGENCY FOR TOXIC SUBSTANCES AND DISEASE REGISTRY, CENTERS FOR DISEASE CONTROL AND PREVENTION, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Braswell, Marina) (Entered: 11/25/2014)
2015-03-30	23	ORDER granting 13 defendants' motion for summary judgment, denying 15 plaintiff's cross motion for summary judgment. Signed by Judge Emmet G. Sullivan on March 30, 2015. (lcegs4) (Entered: 03/30/2015)
2015-03-30	24	MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on March 30, 2015. (lcegs4) (Entered: 03/30/2015)
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