Court of Appeals Decisions

Judicial Watch, Inc. v. Fed. Housing Fin. Agency, No. 10-5349, 2011 WL 3375576 (D.C. Cir. Aug. 5, 2011) (Griffith, J.).  Holding:  Affirming the judgment of the district court that Fannie Mae and Freddie Mac records are not "agency records" subject to the FOIA.  Considering the four factors that determine whether an agency "controls" records as set forth in Burka v. HHS, the D.C. Circuit concludes that Fannie Mae and Freddie Mac records, to which the FHFA has access in its role as conservator under the Housing and Economic Recovery Act of 2008, do not constitute agency records for purposes of the FOIA.  As to the first factor, i.e., "'the intent of the document's creator to retain or relinquish control over the records,'" the D.C. Circuit finds it "agree[s] with [plaintiff] that Fannie and Freddie, the creators of the documents, intentionally relinquished control over the records when they agreed to the conservatorship."  Additionally, the D.C. Circuit determines that "[t]he second Burka factor also supports [plaintiff's] claim, as there is no question that as the conservator of Fannie and Freddie, and the titleholder of their documents, the FHFA enjoys 'the ability . . . to use and dispose of the record[s] as it sees fit.'" 

However, the D.C. Circuit finds that the third factor – "'the extent to which agency personnel have read or relied upon the document'" is "fatal" to plaintiff's claim because "it is uncontested that the FHFA has not used the requested records in any way."  The D.C. Circuit notes that "[i]n deciding whether an agency controls a document its employees created, we have consistently found that 'use is the decisive factor'" and finds that "use is decisive here as well."  The D.C. Circuit comments that "[a]lthough [the court] appreciate[s] [plaintiff's] interest in how much money Fannie and Freddie gave to which politicians in the years leading up to our current financial crisis, satisfying curiosity about the internal decisions of private companies is not the aim of FOIA, and there is no question that disclosure of the requested records would reveal nothing about decisionmaking at the FHFA." 

In terms of the fourth Burka factor, which focuses on "'the degree to which the document was integrated into the agency's record system or files,'" the D.C. Circuit finds that "[i]n this case, the degree is none at all."  The D.C. Circuit notes that here "it is the undisputed testimony of the FHFA's General Counsel that no one at the agency has relied upon these documents in any way."  The D.C. Circuit observes that although "FHFA could consult the requested records as it conducts its business," its "unexercised right to use and dispose of the records requested in this case is not enough to subject those records to FOIA." 

Prison Legal News v. EOUSA, No. 09-1511, 2011 WL 72210 (10th Cir. Jan. 11, 2011) (Murphy, J.).  The Tenth Circuit rules that the district court incorrectly limited the reach of the FOIA "to records that shed light on governmental activity." 

Am. Small Bus. League v. SBA, No. 09-16756, 2010 WL 4026730 (9th Cir. Oct. 15, 2010) (per curiam). The court holds that "the district court's finding that SBA did not control the records at the time of the FOIA request is not clearly erroneous." The court concludes that "[i]t is undisputed that SBA did not actually possess the records in July 2008, and SBA had no obligation either to retain the records or to seek the records once they were no longer in its possession." With respect to the possibility that SBA was in constructive possession of the requested records, the court finds "there is no evidence in the record showing that SBA extensively supervised or was otherwise significantly entangled with Verizon's production and management of the records." The court also determines that "the records do not come within the definition of 'records' codified in 5 U.S.C. § 552(f)(2)(B)," which "requires production only of documents 'maintained for an agency by an entity under Government contract, for the purposes of record management,'" because "it is undisputed that Verizon did not maintain the phone records pursuant to a records-management contract with SBA."

Fox News Network, LLC v. Bd. of Governors of the Fed. Reserve Sys., No. 09-3795, 2010 WL 986665 (2d Cir. Mar. 19, 2010) (Jacobs, C.J.). The Court finds that the Federal Reserve Banks do not issue loans on behalf of the Board of Governors of the Federal Reserve System (Board). "However, 'Records of the Board' also include such records that 'are maintained for administrative reasons in the regular course of business in official files in any division or office of the Board or any Federal Reserve Bank in connection with the transaction of any official business.' . . . The Board argues briefly that it interprets this regulation as well to include only those records created 'under delegated authority from the Board.' This interpretation does not withstand scrutiny." The regulation of the Board "provides that certain records of the twelve Federal Reserve Banks are records of the Board and those records must be searched."

"[B]ecause the district court ruled categorically that collateral information is protected from disclosure by Exemption 4[,] [i]t is unclear if such general collateral information was requested, or whether, under [the court's ruling in Bloomberg], such information could be withheld." This issue is remanded to the district court for an initial ruling.

District Court Decisions

Nat'l Rt. to Work Legal Def. and Educ. Found., Inc. v. U.S. Dep't of Labor, No. 09-2205, 2011 WL 6148661 (D.D.C. Dec. 12, 2011) (Lamberth, J.). Holding: Granting defendant's motion for summary judgment on the basis that DOL properly protected information pursuant to Exemptions 5 and 6. In addition to the issues for which plaintiff expressly conceded, the court finds that plaintiff "has also conceded (by failing to argue otherwise) that certain documents were properly withheld because they are not 'agency records'" under the FOIA. The court observes that plaintiff "nowhere challenges the Department's contention in its Motion [that certain handwritten personal notes] . . . fall outside the scope of FOIA" and holds that "[w]hen a party files an opposition addressing only certain arguments raised in a dispositive motion, a court may treat those arguments that the non-moving party failed to address as conceded."

ExxonMobil Corp. v. U.S. Dep't of Commerce, No. 10-250, 2011 WL 6091470 (D.D.C. Dec. 8, 2011) (Lamberth, J.). Holding: Granting defendant's motion for summary judgment on the basis that plaintiff failed to exhaust its administrative remedies with respect to three requests, and that other requested records were not "agency records" subject to the FOIA; and dismissing plaintiff's FOIA claims brought under the Administrative Procedure Act and the Mandamus Act. The court concludes that certain study records requested by plaintiff, which were created by private researchers who received federal funding to finance their research, are not agency records for the purposes of the FOIA. Considering whether the records were "'created or obtained' by the agency," the court finds that although "data produced by a private researcher may be considered agency records if the researcher was acting on behalf of the agency," it finds that, in this case, the requested studies are not funded directly from NOAA's appropriations, but rather "derived from money transferred to NOAA from the $900 million civil settlement between Exxon and the [federal and Alaskan] Governments." The court also finds that "NOAA's position as one of the federal trustees on the Trustee Council," which "is responsible for soliciting project proposals, administering the proposal process, and developing work plans based on the funding recommendations," "does not change the fact that the [two requested] [s]tudies were conducted by private researchers for the benefit of the Trustee Council, and were not funded by nor conducted on behalf of one of the Trustee Council's trustee agencies."

Additionally, the court determines that "[e]ven assuming, arguendo, that the records requested from the Department of Commerce were 'created or obtained' by the agency, NOAA does not meet the second criterion of the 'agency records' analysis [set forth by the Supreme Court in DOJ v. Tax Analysts] requiring that the agency 'be in control of the requested materials at the time the FOIA request is made.'" First, as to "'the intent of the document's creator to retain or relinquish control over the records,'" the court finds that "it is unclear whether the researchers, by agreeing to abide by the [Trustee Council's] Data Policy, effectively intended to relinquish control over their preliminary findings to the agency." Second, the court concludes that the Trustee Council's Data Policy "plainly demonstrates that that NOAA has no ability to dispose of the requested records as it sees fit." Third, with respect to "'the extent to which agency personnel have read or relied upon the document,'" the court finds that there is no evidence that the NOAA Trustee or NOAA personnel read or relied upon the data sought by plaintiff. Lastly, the court determines that "[t]he requested documents . . . have not been integrated into NOAA's record system or files." In consideration of all these factors, the court concludes that "requested records are not 'agency records' of NOAA within the meaning of FOIA." With regard to plaintiff's FOIA request to the EPA, the court finds that "EPA had no involvement in [a particular] [p]roject after the proposal stage, making clear that EPA did not create or obtain the requested materials and thus unquestionably fails to satisfy the first criterion of the 'agency records' test." As such, "[t]he Court thus sees no need to reach the question of whether EPA was in control of the requested materials at the time of the FOIA request and therefore holds that the requested materials are not 'agency records' of EPA within the meaning of FOIA."

Media Research Ctr. v. DOJ, No. 10-2013, 2011 WL 4852224 (D.D.C. Oct. 13, 2011) (Huvelle, J.).  Holding:  Granting DOJ's motion for summary judgment on the basis that it conducted an adequate search for responsive records, it properly determined that certain records were not "agency records" for FOIA purposes, and it properly invoked Exemption 5.  The court holds that the certain e-mails which contain communications "created or received by S.G. Kagan in her capacity as a judicial nominee for the U.S. Supreme Court" do not qualify as agency records for purposes of the FOIA.  At the outset, the court observes that under the Supreme Court's decision in DOJ v. Tax Analysts "'[d]ocuments qualify as 'agency records' subject to FOIA disclosure if they are (1) created or obtained by an agency, and (2) in the agency's control.'"  Furthermore, citing the D.C. Circuit in Bureau of National Affairs v. DOJ, the court notes that "'in cases [such as this one] . . . where documents are created by an agency employee and located within the agency, use of the documents becomes more important in determining the status of the document under FOIA.'"  Here, "S.G. Kagan's correspondence was not relied upon by the [Office of Solicitor General] in carrying out its business, but rather was used for a purely personal objective."  The court concludes that "the relevant factors compel the conclusion that the withheld documents were personal, not attributable to the agency, and therefore were not 'agency records.'"

Judicial Watch, Inc. v. U.S. Secret Serv., No. 09-2312, 2011 WL 3610077 (D.D.C. Aug. 17, 2011) (Howell, J.).  Holding:  Granting plaintiff's partial motion for summary judgment and concluding that White House visitor logs are agency records subject to the FOIA.  Applying the two part test outlined by the Supreme Court in Department of Justice v. Tax Analysts, the court "agrees with the conclusions of the other judges in this District" and finds that White House visitor logs are agency records for the purposes of the FOIA.  As to the first part of the test, i.e., whether an agency "'create[d] or obtain[ed] the requested materials,'" which the Secret Service "does not appear to contest," "the court finds that "[r]egardless of what information may be supplied by outside actors, the WAVES and ACR records are largely generated by the Secret Service and are undisputedly obtained by the Secret Service" and, thus, the first prong of the test is satisfied.  With regard to the second part of the test, namely, whether the agency is "'in control of the requested materials at the time the FOIA request is made,'" the court examines four factors: "'(1) the intent of the document's creator to retain or relinquish control over the records; (2) the ability of the agency to use and dispose of the record as it sees fit; (3) the extent to which agency personnel have read or relied upon the document; and (4) the degree to which the document was integrated into the agency's record system or files.'"  For the first factor, the court concludes that "intent, weighs in favor of the Secret Service's assertion that the records are not under agency control" because "it has been the practice of the Secret Service to regularly transfer copies of the WAVES and ACR records to the [White House Office of Records Management (ORM).]"

However, the court finds that the second factor concerning the agency's ability to use and dispose of the records weighs against the Secret Service because "[r]egardless of its stated transfer policy, . . . the Secret Service has consistently continued to maintain copies of these records on its systems, and has not sufficiently explained any restriction on its use or disposition of these documents."  The court also concludes that "[t]he third factor – the extent to which Secret Service personnel have read or relied upon the documents – cuts strongly against the Secret Service."  Although the Secret Service argues that it only relies on the records to conduct background checks on visitors and verify admissibility at the time of entrance to the White House, the court finds that "the fact that [it] uses the documents for the limited purpose for which they were created strongly suggests the documents are 'agency records' under FOIA."  Lastly, the court finds that the fourth factor, i.e., "the degree to which the records were integrated into the Secret Service's record system, also weighs against the Secret Service."  Although it is "the 'intent' of the Secret Service to erase the WAVES records from their servers after [the] transfer" to ORM, the court finds that this fact "is not dispositive in determining whether the records are integrated."  The court observes that "[e]ven if [it] assumes that all of the records in question have, in fact, been deleted from the Secret Service's computer system since their initial use, the Secret Service does not contest that the records were at one point an integrated portion of its computer system."  Accordingly, the court concludes that these records "were substantially integrated" into the agency's records system.  Balancing all the factors above, the court determines that the visitor logs are agency records.

As to defendant's argument that the court should "construe FOIA not to cover the WAVES and ACR records [in order] to avoid raising serious Constitutional questions" regarding the separation of powers, the court finds that "[t]he Constitutional avoidance doctrine is not applicable here because the Court is not faced with the interpretation of an ambiguous statute."  Moreover, the court notes that "the FOIA has built-in exemptions that mitigate the risk of the precise separation of powers concerns the defendant raises."  The court also rejects defendant's claim that "it would be 'virtually impossible' for the Secret Service to process plaintiff's FOIA request with respect to records created between January 20, 2009 and September 15, 2009 without potentially compromising national security interests."  Rather, the court notes that the Secret Service does not contest that there are "at least some records implicated by plaintiff's FOIA request that could be easily searched for, separated out, and disclosed without raising national security concerns."  Accordingly, the court concludes that "[a]t this stage, . . . defendant has not met its burden to show that the requested material either falls within a FOIA exemption or would be unreasonably burdensome to search."  

The Ctr. for Medicare Advocacy, Inc. v. HHS, No. 10-645, 2011 WL 2119226 (D. Conn. May 26, 2011) (Kravitz, J.).  Holding:  Concluding that HHS conducted a reasonable search for records and properly excluded from its search records that were not created or under the control of the agency.  The court concludes that HHS is not required to search the records of contractors that administer Medicare Advantage Plans under Medicare Part C in response to a FOIA request.  Citing the Supreme Court's decision in Tax Analysts for the proposition that "materials only qualify as 'agency records' if they both were obtained or created by the agency and are under the control of the agency," the Court determines that HHS's regulations providing that "'contractor records are not subject to FOIA unless they are in the possession or under the control of HHS or its agents'" underscores that "even when contractor records were originally created or obtained by HHS, those records are not 'agency records' for FOIA purposes unless they remain in the possession or under the control of HHS."  The court notes that, in accordance with agency regulations promulgated in 1987, contractors administering Medicare Part A and Part B "are treated as part of HHS for FOIA purposes."  The court notes, however, that "there is no regulation that defines Medicare Part C contractors as part of HHS for FOIA purposes."  The court finds that "[i]t is clear that the Medicare Advantage Plan records sought by [plaintiff] were not created or obtained by HHS and are not in the control of HHS."  Moreover, plaintiff "does not allege that the information it seeks from the Medicare Part C contractors came into HHS's possession at any point – let alone 'in the legitimate conduct of [HHS's] official duties.'" 

The court further notes that although the Second Circuit has not adopted the D.C. Circuit's holding in Burka v. HHS concluding that "it is possible for an agency to constructively obtain and control records for FOIA purposes," even under that standard, plaintiff would not prevail.  The court finds that under that standard "the documents held by the Part C contractors would not be deemed 'agency records,' since there is no allegation that the agency exercised 'extensive supervision and control' over the production of the records . . . and [plaintiff] has offered no evidence that the Part C contractors intended to relinquish control over the records to HHS, that HHS had the ability to use and dispose of the records as it saw fit, that HHS personnel read or relied on the records, or that the records were in any way integrated into HHS's record system or files."  The court also rejects plaintiff's arguments that "Part A, Part B, and Part C contractors are all 'state actors' for the purposes of Medicare, that any of those contractors' training materials with regard to the improvement standard are thus 'agency records,' and that '[t]he Court should not accord any credit to HHS['s] failure to update its regulation [to include Part C plans].'"  For one, the court concludes that, despite the fact that HHS defined Part A and Part B providers as subject to the FOIA in its 1987 regulation, "[n]othing indicates that the regulation codified a general principle that any private entity that contracts with an agency to administer the agency's programs is part of the agency for purposes of the FOIA."  The court notes that "HHS is free to interpret the FOIA's definition of 'agency' to mean that Part C plans are included within HHS for FOIA purposes" "[b]ut [it] has not done so."  Moreover, although Part C was enacted after the 1987 regulations were promulgated, the court "sees no reason why the agency would not have amended the 1987 regulation if it believed that Part C contractors should be treated like Part A and Part B contractors for FOIA purposes."  With respect to plaintiff's "state actors" claim, the court "rejects [plaintiff's] attempt to graft the Fourteenth Amendment's 'state action' requirement onto the standard for determining whether a document is an 'agency record' under FOIA."  

Reich v. DOE, No. 09-10883, 2011 U.S. Dist. LEXIS 27317 (D. Mass. Mar. 17, 2011) (Gorton, J.).  The court holds that neither the draft nor the final versions of the investigative report are agency records.  DOE obtained both versions and so the court focuses on control.  In order to determine whether DOE exercised sufficient control over the two versions of the reports, the court assesses four factors.  First, in terms of "the intent of the document's creator to retain or relinquish control over" the report, the court finds that the fact that vice president of the private corporation emailed a copy of the draft report to an associate director at DOE "is evidence that he intended for her to retain a copy of that Draft for her records and perusal" and, accordingly, "this factor weighs in favor of finding that the Draft Report is an agency record."  With respect to the final version of the report, the court finds that the vice president "demonstrated intent to retain control of and restrict the DOE's access to the Final Report by retrieving all copies at the end of each meeting, including the binder that was sent to [the DOE associate director] a few days before [a] March, 2007 meeting" which weighs against a finding that the report is an agency record.

Second, examining the DOE's ability to use and dispose the reports, the court concludes that a notice on the front page of both the final and draft versions explicitly prohibiting the DOE from disclosing the copies demonstrates that "agency control is extremely limited here and the second factor weighs against a finding that [these reports] are agency records."  Third, the court looks at the extent to which DOE personnel read or relied upon the reports and considers this "arguably the most important [factor] in determining the agency's control over a document."  The court concludes that "because only one agency employee skimmed the Draft Report and none relied upon either the Draft or Final Report, this factor weighs against a finding that either version is an agency record." 

Fourth, considering the extent to which the reports were integrated into DOE's records systems or files, the court concludes that the presence of one copy of the final report at two separate meeting, during which "none of the attendees even glanced at it," and the associate director's "temporary possession of the Final Report for less than one week did not constitute integration into the DOE's record system."  With respect to the draft version, the court finds that although this copy of the report "remains archived in DOE's email files," "mere storage of a record at a federal agency does not, by itself, make it an agency record." 

Am. Fed'n of Gov't Employees, Local 812 v. Broad. Bd. of Governors, No. 09-1191, 2010 WL 1976747 (D.D.C. May 18, 2010) (Huvelle, J.). The record indicates "that the FBI did not intend to relinquish control over [records it provided to the BBG] or to permit the BBG to use and dispose of the file as it sees fit. The BBG therefore lacks 'control' of the FBI file, and defendant is therefore not obligated to produce it as an 'agency record.'"

Bloomberg, L.P. v. Bd. of Governors of the Fed. Reserve Sys., No. 08-9595, 2009 WL 2599336 (S.D.N.Y. Aug. 24, 2009) (Preska, C.J.). Federal Reserve Board regulations establish that certain records maintained by the Federal Reserve Bank of New York (FRBNY) are agency records of the Board. "[A]ccording to the plain language of its own Regulations, the Board, by way of the Secretary of the Board, obtains and controls records in the possession or control of the FRBs, and those records qualify as 'agency records' for purposes of FOIA requests addressed to the Board. However, not all records at the FRBs are within the custody of the Secretary of the Board because the Regulations elsewhere limit the scope of 'Board records' . . . to a subset of documents in the possession or control of the FRBs." At a minimum, "if a record is kept in the Board's official files at a FRB, the Secretary of the Board is its official custodian, regardless of its subject matter, and thus it qualifies as a Board 'agency record.'" These records must be searched. The court, however, rejects plaintiff's "constructive obtainment and control" theory for all records of the FRBs. Supreme Court rulings in this area "certainly do not compel" its adoption. Finally, the court need not reach the question of whether the FRBs are themselves agencies subject to the FOIA for the purposes of this litigation, which involved a request made to the Reserve Board.

Kensington Research & Recovery v. HUD, No. 08-1250, 2009 U.S. Dist. LEXIS 39797 (N.D. Ill. May 8, 2009) (Gottschall, J.). "Although HUD did not save the data in the precise format that was transmitted . . ., the de minimis outlay of time, energy, and resources required to recreate a HUD-27050-B form that previously existed does not constitute creation of a new record." Thus, "HUD's argument that the HUD-27050-B form is not an 'agency record' [because HUD did not maintain a copy after it sent it to the homeowner] is rejected."