Records Subject to FOIA

Introduction
Not every thing that the federal government has is subject to disclosure under FOIA. In general, only "agency records" are subject to FOIA's mandate of access. Physical objects cannot be obtained under FOIA.

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.

Create

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
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.”