Records Subject to FOIA

Introduction
Not every thing that the federal government has is subject to disclosure under FOIA. Only "agency records" that already exist are subject to FOIA's mandate of access. Agencies are not required to create new records to fulfill a FOIA request.

Defining 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.

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.

In Doyle v. U.S. Dep't of Homeland Sec., the court found that the Secret Service did not have control over Presidential Schedule Documents, because it "...only passively received them from the White House." The court noted that "the considerations that render FOIA inapplicable to WAVES and ACR records apply with equal force to the Presidential Schedule Documents."

The Ninth Circuit has declined to adopt the four factor test outlined above, finding it in tension with Supreme Court precedent. Instead, it held that "a court may consider a range of evidence to determine whether specified records are in the agency’s possession in connection with agency-related business, or instead involve personal matters not related to the agency’s 'transaction of public business,'" which could include documents which are used by an agency employee in connection with agency business but relate to misconduct. The Court noted that if an agency and another outside party engage in communications, those are also agency records.

Searching/querying databases is not creating a "new record"
Some courts have struggled to analogize some of these principles, which were developed in the context of paper records, to computer databases and other electronic records. But according to the Ninth Circuit, the only federal appellate court to address the issue in depth, “using a query to search for and extract a particular arrangement or subset of data already maintained in an agency’s database does not amount to the creation of a new record.” "So long as the relevant information and data fields already exist in the database maintained by the agency, the result produced by a query is an existing record, regardless of the form it takes."

The Second Circuit has adopted this standard and actually gone further. The Second Circuit ordered an agency to find a reasonable way to substitute non-exempt data points in place of exempt data points, since the data was essentially useless otherwise. The court emphasized the agency was obligated to offer the public "equal access to non-exempt records" as the agency itself enjoyed in the ordinary course of its business, including both content and functionality.

Some courts have found, however, that agencies are not required to produce a screenshot or printout of electronic databases, as opposed to exporting the actual database contents.

Agency records vs. Congressional records
While FOIA applies to most executive branch entities, it does not apply to Congress. A question can arise, however, as to the scope of FOIA's disclosure requirements when an executive branch entity either possesses records sent from Congress or creates records in response to a request from Congress.

In United We Stand America v. IRS, the Court of Appeals for the D.C. Circuit confirmed that the four-part Burka test applies in the context of determining whether a record is an "agency record" subject to FOIA or a Congressional record that is not. The primary analysis in this context is whether Congress has expressed an intent to control the document as compared with the agency's ability to control and use the document.

At issue in United We Stand were a number of documents related to a request from the Joint Committee on Taxation to the IRS, including a letter from the Joint Committee to the IRS requesting specified categories of documents and information and a seventeen-page letter with three attachments that the IRS prepared in response. In evaluating who had control over the records, the Court held that there was "sufficient indicia of congressional intent to control, but only with respect to the Joint Committee's April 28 request and those portions of the IRS response that would reveal that request." The letter from the Joint Committee, for example, stated that "[t]his document is a Congressional record and is entrusted to the Internal Revenue Service for your use only. This document may not be disclosed without the prior approval of the Joint Committee." The Court reasoned, however, that the reference to "[t]his document" referred only to the letter from the Joint Committee, and did not apply to the IRS's response except to the extent that the response would reveal the Joint Committee's request. Those records were, therefore, required to be released.

A number of arguments raised by the IRS were rejected by the Court, including (1) that the Joint Committee believed the IRS's internal manual would ensure the confidentiality of its response, (2) that the Joint Committee's past dealings with the IRS led it to believe the records would remain confidential, and (3) that the continued objection of the Joint Committee to the release of the records demonstrated its intent to control them.

In rejecting the second argument, the DC Circuit stated that any "understanding" between the Joint Committee and the IRS based on past dealings "is far too general to remove the IRS response from FOIA's disclosure requirement. Skeptical of such pre-existing agreements, we have required a more specific showing of congressional intent to control documents sought by FOIA requesters."

In rejecting the third argument raised by the IRS, the Court noted that it had previously emphasized that "the absence of contemporaneous and specific instructions from [Congress] to the agencies limiting either the use or disclosure of the documents[]” can defeat a claim of Congressional control. In other words, "post-hoc objections to disclosure cannot manifest the clear assertion of congressional control" that are required to take a document outside of FOIA's scope.

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.

The Ninth Circuit has declined to adopt the above test, finding that DC Circuit's approach is in tension with Supreme Court precedent. Instead, the court held that it "may consider a range of evidence to determine whether specified records are in the agency’s possession in connection with agency-related business, or instead involve personal matters not related to the agency’s “transaction of public business.