Records Subject to FOIA

Introduction
Not every thing that the federal government has is subject to disclosure under FOIA. Only "agency records" are subject to FOIA's mandate of access.

Agency records
The FOIA does not specifically define “agency record,” although it defines a “record” as “any information that would be an agency record subject to the requirements of [FOIA] when maintained by an agency in any format, including an electronic format; and any [such] information. . . that is maintained for an agency by an entity under Government contract, for the purposes of records management.”

In U.S. Dep’t of Justice v. Tax Analysts, the Supreme Court provided a two-part definition for what constitutes an “agency record” under FOIA. To satisfy this definition, an agency must
 * 1) “‘create or obtain’ the requested materials,” and
 * 2) “be in control of the requested materials at the time the FOIA request is made.”.

Create or Obtain
As noted above, an agency must either "create or obtain" a record in order for it to be an "agency record" subject to FOIA under the first prong of the Tax Analysts test.

Create
An analysis of whether an agency has created a record focuses on “the process by which the records are generated,” rather than who provides “the contents of the records.” As one court explained, “[t]his distinction is important, because ‘[t]he FOIA deals with documents, not information.’” For example, one court held that White House visitor logs were created by the Secret Service (a component of the Department of Homeland Security) — even though much of the visitors’ information was provided by Presidential and Vice-Presidential staff members — as the agency “largely generated” the logs themselves. Since Secret Service officials entered visitors’ information into a computer system, processed it to conduct background checks, and used it in verifying visitors when they arrived, the court found that the records were created by the Secret Service, “[r]egardless of what information may be supplied by outside actors.” You should likewise argue that the way in which the records are generated within an agency — for example, with the involvement of agency personnel — shows that it is a record created by that agency.

Just because a private entity, such as a government contractor, is involved with certain records does not mean they are not created by the agency. Even where records are “neither created by agency employees” nor “currently located on agency property,” they are still “created” by the agency so long as the contractor “acted on behalf of [the agency] in creating the” records at issue.

If the agency exercised “extensive supervision and control” over the contractor in its development of the records, they can qualify as agency records. For example, a court ruled that records that a company “produced in connection with” its contract with a government agency were generated “on behalf of” the agency, where the agency hired a private company to audit an agency study and reproduce the study results — using specific agency-prescribed methods — for the purpose of validating their accuracy.

Similarly, a court held that records in the physical possession of a contractor operating a government-owned animal facility were records created “on behalf” of the agency. The court pointed to the facts that the agency owned the building where the records were housed, the agency required the contractor to maintain the records, the records related to animals owned by the agency, and the files were subject to agency inspection.

In contrast, a court held that the Small Business Administration did not have to produce the cell phone records of a former employee from Verizon Wireless, as the agency did not “extensively supervise[]” or become “otherwise significantly entangled with Verizon’s production and management of the records.”

Obtain
An agency “obtains” a record if it physically has possession of it.

Control
The Supreme Court has explained that “control” means “the materials have come into the agency's possession in the legitimate conduct of its official duties.”. It further specified that the whether an agency has "control" of a record is determined at the time of the request.

Courts generally evaluate four factors in determining whether an agency “controls” requested records:
 * 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.

Courts have emphasized that in the balance of the factors, “use trumps intent” — that is, “the third and fourth factors [are] the most important” — so even where an agency argues that it did not intend to control the records, this can be overcome by a showing that the agency actually used the records.

For example, a court held that the Secret Service “controlled” White House visitor logs, even though the Secret Service showed an intent to relinquish control by entering a Memorandum of Understanding with the White House Office of Records Management that the records were “at all times Presidential Records” and “not the records of an ‘agency’ subject to the Freedom of Information Act.”

While the agency stated that it intended to transfer the records to the ORM and delete them from their own system, the court did not find this intent “dispositive” in assessing the Service’s actual ability to freely dispose of the records. The court reasoned that the Secret Service controlled the records because its personnel “read or relied” on them in performing background checks and verifying visitors. Finally, the records resided on the agency’s servers, thereby integrating them into the agency’s record system. While the Secret Service argued that the records were not integrated into its operations because they were downloaded onto CDs and transferred to the White House every 30 to 60 days and then purged from its servers, the court stated that “[t]he fact that the records are transferred is not dispositive in determining whether the records are integrated,” and emphasized that all of the records “were at one point an integrated portion of its computer system.”

Consistent with courts’ emphasis on the agency’s actual use of the records in this four-part analysis, they have held that ownership is not the same as control, so it will likely not be enough to merely assert that the agency has control over a record because it owns the record. For example, in one case, a requester unsuccessfully argued that since the Federal Housing Financial Authority held “title” to certain Freddie Mac or Fannie Mae records when the agency became conservator of the companies, the court did not need to consider the four control factors. The court rejected this proposition, stating that “our cases have never suggested that ownership means control.”

Looking next to the four factors, the court found that agency personnel never used the records, and stated that “an agency cannot integrate into its record system a document created by a third party that none of its employees have read.” Although the companies — the documents’ creators — had “intentionally relinquished control over the records when they agreed to the conservatorship,” and the agency could freely use and dispose of the records, the court found the fact that there had been no actual use of the records to be “fatal” to the requester’s control argument.

Agency records vs. personal records
Agencies sometimes contend that a particular record is a personal record of an employee, not an agency record subject to FOIA.

The DC Circuit has adopted a totality of the circumstances test to distinguish “agency records” from personal records, which “focus[es] on a variety of factors surrounding the creation, possession, control, and use of the document by an agency.”. The test specifically examines:
 * 1) “the purpose for which the document was created,”
 * 2) “the actual use of the document,” and
 * 3) “the extent to which the creator of the document and other employees acting within the scope of their employment relied upon the document to carry out the business of the agency.”

In one case, a court applied these factors in finding that five agency officials’ electronic calendars were agency records, but a sixth was not, based on the way in which they were used. The court ruled that five electronic calendars of agency officials were agency records, rather than personal records, because they were “continually updated and used to conduct agency business.” The officials made the calendars available to other agency employees to enable them to determine the officials’ availability, and the officials themselves relied on the calendars to organize their business appointments. These factors distinguished the calendars from “a personal diary containing an individual’s private reflections on his or her work-but which the individual does not rely upon to perform his duties.” To the extent that the calendars also included personal appointments, the court explained, this did not make the calendars non-agency records; instead, the agency could redact the personal entries. However, the court ruled that the calendar of an agency assistant administrator was not an agency record because he distributed it only to his secretary and any temporary secretaries to communicate his availability to them. Other than the secretaries, no agency employees relied on his calendar.