Records Subject to FOIA

Introduction
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.”

Agency Records
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.”.

Control
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.

Agency Records vs. Personal Records
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.”