                                                                                 FILED
                                                                     United States Court of Appeals
                                       PUBLISH                               Tenth Circuit

                      UNITED STATES COURT OF APPEALS                        January 5, 2018

                                                                          Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                             Clerk of Court
                        _________________________________

ROCKY MOUNTAIN WILD, INC., a
Colorado non-profit corporation,

      Plaintiff - Appellant,

v.                                                          No. 17-1119

UNITED STATES FOREST SERVICE, a
federal agency; UNITED STATES
DEPARTMENT OF AGRICULTURE, a
federal agency,

      Defendants - Appellees.
                      _________________________________

                    Appeal from the United States District Court
                            for the District of Colorado
                       (D.C. No. 1:15-CV-00127-WJM-CBS)
                      _________________________________

Travis E. Stills of Energy and Conservation Law (and Matthew Sandler of Rocky
Mountain Wild, Denver, Colorado, on the briefs), Durango, Colorado, for Plaintiff -
Appellant.

Karl L. Schock, Assistant United States Attorney (and Robert C. Troyer, Acting United
States Attorney, on the brief), Denver, Colorado, for Defendants - Appellees.
                         _________________________________

Before, PHILLIPS, KELLY, and McHUGH, Circuit Judges.
                    _________________________________

KELLY, Circuit Judge.
                        _________________________________
      Plaintiff-Appellant Rocky Mountain Wild appeals from the district court’s

determination of law that Defendant-Appellee U.S. Forest Service has no duty under

the Freedom of Information Act (FOIA) to disclose unseen documents in possession

of third-party contractors. Rocky Mountain Wild, Inc. v. U.S. Forest Serv., 230 F.

Supp. 3d 1245, 1246 (D. Colo. 2017). The question on appeal is whether the

documents are “agency records” within the meaning of FOIA. We have jurisdiction

under 28 U.S.C. § 1291 and affirm because the documents were not created,

obtained, or controlled by the Forest Service.



                                     Background

      The underlying dispute arises from Rocky Mountain Wild’s FOIA request

concerning a land exchange proposal called the Wolf Creek Project. Aplee. Supp.

App. 2–4. The project proponent, the Leavell-McCombs Joint Venture (LMJV),

wanted to exchange privately owned land for federal land within the Rio Grande

National Forest. Id. at 2–3. LMJV and the Forest Service entered into a

Memorandum of Understanding (MOU) whereby LMJV agreed to hire a third-party

contractor to prepare an environmental impact statement (EIS) for the proposed

exchange. Aplt. App. 145. They selected Western Ecological Resource, Inc., to

prepare the EIS in accordance with the MOU, and LMJV and Western Ecological

entered into an employment agreement to that effect. Id. at 101. After distributing a

draft for public comment, the Forest Service published the final EIS, and Rocky

Mountain Wild filed its FOIA request that same day. Aplee. Supp. App. 3–4.


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      Rocky Mountain Wild and the Forest Service were able to agree on the

disclosure of all requested materials except for one category: documents in Western

Ecological’s (and 13 subcontractors’) possession that were never shared with the

Forest Service. Rocky Mountain Wild, 230 F. Supp. 3d at 1246–47. The Forest

Service filed a motion for a determination of law regarding its obligation under FOIA

to produce these records, and the district court ruled that the Forest Service has “no

duty, under the circumstances, to disclose third-party contractors’ records that it has

never seen or relied upon.” Id. at 1246. Specifically, the district court assumed (for

the sake of argument) that the Forest Service created the records, id. at 1248, and

held that “the Forest Service does not exercise sufficient ‘control’ to make those

records ‘agency records’ for FOIA purposes,” id. at 1252.



                                      Discussion

      Whether an agency has improperly withheld a record from a FOIA request is a

question of law that we review de novo. See Trentadue v. Integrity Comm., 501 F.3d

1215, 1226 (10th Cir. 2007). Here, the Forest Service argues that the contractor

documents were not improperly withheld, because they are not “agency records”

subject to FOIA. To be “agency records,” (1) “an agency must ‘either create or

obtain’ the requested materials” and (2) “the agency must be in control of the

requested materials at the time the FOIA request is made.” U.S. Dep’t of Justice v.

Tax Analysts, 492 U.S. 136, 144–45 (1989) (quoting Forsham v. Harris, 445 U.S.




                                           3
169, 182 (1980)). The burden is on the agency to demonstrate that the requested

materials are not agency records. Id. at 142 n.3.




                                           4
A.    Whether the Forest Service Created or Obtained the Requested Materials

      The first issue is whether the Forest Service created or obtained the requested

materials. By FOIA’s terms, an “agency” “includes any executive department,

military department, Government corporation, Government controlled corporation, or

other establishment in the executive branch of the Government (including the

Executive Office of the President), or any independent regulatory agency.” 5 U.S.C.

§ 552(f)(1) (2012). “In general, FOIA . . . does not apply to private companies,

persons who receive federal contracts or grants, private organizations, or state or

local governments.” H.R. Rep. No. 112-689, at 5 (2012) (footnote omitted).

      Here, private contractors — not the Forest Service — created the requested

materials. For a private organization to be considered “federal” for FOIA purposes,

there must be “substantial federal supervision of the private activities” apart from the

supervision “necessary to assure compliance” with agency goals. Forsham, 445 U.S.

at 180 n.11. “A critical element in distinguishing an agency from a contractor is the

power of the Federal Government ‘to control the detailed physical performance of the

contractor.’” United States v. Orleans, 425 U.S. 807, 814 (1976) (quoting Logue v.

United States, 412 U.S. 521, 528 (1973)). Taking “action to compel compliance with

federal standards” or fixing “specific and precise conditions to implement federal

objectives” is not substantial enough federal supervision for a private organization to

be considered a federal agency. Id. at 815–16.

      The Forest Service did not exercise sufficient control over Western Ecological

or the subcontractors for the requested materials to have been created by an


                                           5
“agency.” The employment agreement between LMJV and Western Ecological

provided that the EIS would “be prepared under Forest Service supervision,” Aplt.

App. 101, but that supervision consisted of meeting with and briefing the Forest

Service on various topics and working closely with the Forest Service to complete a

list of tasks, see id. at 102–03. This does not constitute detailed control over the

contractor’s day-to-day performance that would make the contractor a federal

instrumentality or FOIA agency. See Forsham, 445 U.S. at 180.

      The term “agency records” applies not only to materials generated within an

agency, but also to materials acquired from outside organizations. Tax Analysts, 492

U.S. at 144–45 (“The legislative history of the FOIA abounds with . . . references to

records acquired by an agency.” (quoting Forsham, 445 U.S. at 184)). Whether

materials are “agency records” does not “turn on the intent of the creator.” Tax

Analysts, 492 U.S. at 147. That is, the definition of “agency records” does not

depend on whether materials originating outside an agency were “prepared

substantially to be relied upon in agency decisionmaking.” Id. If the materials were

not created by the agency itself and were never acquired by the agency, the materials

are not “agency records” even if they were prepared by a contractor acting on the

agency’s behalf. See Forsham, 445 U.S. at 171.

      Rocky Mountain Wild does not argue that the Forest Service has ever acquired

or seen the requested materials. Instead, it argues that documents relied upon or

indirectly considered by an agency are “agency records.” However, “reliance on a

document does not make it an agency record if it has not been created or obtained by


                                            6
a federal agency.” Forsham, 445 U.S. at 177 n.7. Reliance may be relevant “to the

question of whether a record in the possession of an agency is an ‘agency record,’”

id. (emphasis added), but “without first establishing that the agency has created or

obtained the document, reliance or use is . . . irrelevant,” id. at 186. The Forest

Service does not possess the documents at issue, making reliance irrelevant.

      Rocky Mountain Wild also argues that the Forest Service “accepted” the

records by indirectly relying on them, citing Bar MK Ranches v. Yuetter, 994 F.2d

735 (10th Cir. 1993), and Rohrbough v. Harris, 549 F.3d 1313 (10th Cir. 2008). But

the cited language from Bar MK Ranches concerns the scope of the administrative

record — not the definition of “agency record” — for the purposes of challenging

agency action under the Administrative Procedure Act (APA). See 994 F.2d at 739.

And while the court in Rohrbough stated, “If a judge makes a decision based on

materials presented to him or her, even if the materials are not formally filed, they

could be said to be ‘accepted’ by agency personnel,” 549 F.3d at 1318, this language

is inapposite here, where the requested materials were never presented to the agency.

      The district court expressed concern over a perceived “blind spot” in the Tax

Analysts approach:

      If “created” is construed strictly to mean “created by an agency
      employee,” then agencies could largely avoid FOIA by delegating tasks
      to outside contractors, reviewing those contractors’ work in a manner
      that avoids actually “obtaining” any documents (such as through an on-
      site visit), and then instructing the contractor only to transmit a
      particular subset of work product back to the agency.




                                            7
Rocky Mountain Wild, 230 F. Supp. 3d at 1248. However, those facts are not present

here. Regardless, the above scenario can be remedied through the APA, rather than

FOIA. As the court explained in Bar MK Ranches, under the APA, a district court

reviews an agency action based on the full administrative record (not merely on

agency records), which “consists of all documents and materials directly or indirectly

considered by the agency.”1 994 F.2d at 739.

      Here, private contractors, not the Forest Service, created the documents. And

as the Forest Service has never even seen the requested materials, it cannot be fairly

said that the Forest Service ever obtained them. Accordingly, the Forest Service has

met its burden of showing that the contractor documents do not satisfy the first part

of Tax Analysts’ definition of “agency records.”

B.    Whether the Forest Service Controlled the Requested Materials

      For the requested materials to constitute “agency records,” the Forest Service

must also have controlled the materials at the time of the FOIA request. See Tax

Analysts, 492 U.S. at 145. “By control we mean that the materials have come into

the agency’s possession in the legitimate conduct of its official duties.” Id.

(emphasis added). Rocky Mountain Wild concedes that the Forest Service does not

possess the contractor documents but nevertheless argues that the terms of the MOU

and employment agreement grant the Forest Service control over the documents.


      1
        In fact, Rocky Mountain Wild brought a challenge to the adequacy of the
administrative record — and succeeded — in a separate district court proceeding.
See Rocky Mountain Wild v. Dallas, No. 15-cv-01342-RPM (D. Colo. May 19,
2017), ECF No. 67.

                                           8
      We disagree. The employment agreement between LMJV and Western

Ecological contains a provision that in the event of a legal challenge to the Wolf

Creek Project, Western Ecological “must make available to the Forest Service any

information requested by the Forest Service.” Aplt. App. 103. However, it does not

matter that the Forest Service could possess the documents by requesting them from

Western Ecological: a federal right of access does not render a private organization’s

data “agency records” subject to FOIA, because “FOIA applies to records which have

been in fact obtained, and not to records which merely could have been obtained.”

Forsham, 445 U.S. at 186.

      Rocky Mountain Wild also claims that the Forest Service has “constructive

control” over the requested materials, citing Burka v. U.S. Department of Health &

Human Services, 87 F.3d 508 (D.C. Cir. 1996). This argument failed to persuade the

district court, which applied the factors laid out in Burka to determine that the Forest

Service did not have constructive control over the requested materials. Rocky

Mountain Wild, 230 F. Supp. 3d at 1248–52. We do not find it necessary to apply

the Burka factors to conclude that the Forest Service did not control the documents.

      In Burka, the D.C. Circuit found that data collected by a private contractor

were “agency records,” despite not having been created by agency employees nor

located on agency property, because of the “extensive supervision and control

exercised by the agency over collection and analysis of the data.” 87 F.3d at 515.

Regardless of whether this “constructive control” theory is consistent with Supreme

Court precedent, see generally Bloomberg L.P. v. Bd. of Governors of the Fed.


                                           9
Reserve Sys., 649 F. Supp. 2d 262, 275 (S.D.N.Y. 2009), aff’d, 601 F.3d 143 (2d Cir.

2010), Burka is distinguishable because there, the agency planned to take physical

possession of the data in the near future, 87 F.3d at 515. And in Burka, the

government did not appear to contest the requesting party’s claim that the agency

exercised constructive control over the data. 87 F.3d at 515 n.5. Here, there is no

suggestion that the Forest Service ever plans to exercise its right to obtain the

contractor documents, and it emphatically contests the constructive control issue.

      Because the Forest Service never possessed the contractor documents, it could

not have controlled them at the time of the FOIA request. The Forest Service has

therefore met its burden of demonstrating that the requested materials do not satisfy

the second part of Tax Analysts’ definition of “agency records.”

C.    Whether the Requested Materials Are Agency Records by Contract

      Rocky Mountain Wild makes two additional arguments for why the requested

materials are “agency records”: (1) the materials are Forest Service property and (2)

Western Ecological contractually maintains the materials. The first of these is based

on the employment agreement between LMJV and Western Ecological, which

provides that Western Ecological’s work product “will be considered Forest Service

work product belonging to the Forest Service.”2 Aplt. App. 101. Rocky Mountain

Wild argues that an agency’s contractual ownership of documents renders them

      2
        The MOU between the Forest Service and LMJV similarly provides, “All
work product created pursuant to this Agreement, including but not limited to, all
data and analyses, shall be the property of the Forest Service.” Aplt. App. 154. But
the MOU also provides that it is nonbinding and “creates no right, benefit, or trust
responsibility, substantive or procedural, enforceable at law or equity.” Id. at 155.

                                           10
“agency records,” citing Gilmore v. U.S. Department of Energy, 4 F. Supp. 2d 912

(N.D. Cal. 1998).

      The Gilmore court based its contractual ownership rule, in part, on the premise

that “as a policy matter, the government should not be able to avoid all of its FOIA

obligations merely by storing its records offsite.” 4 F. Supp. 2d at 923 n.5. This

concern was alleviated by the 2007 amendments to FOIA, which incorporated

information maintained through a records management contract into the definition of

“record.” See OPEN Government Act of 2007, Pub. L. No. 110-175, § 9, 121 Stat.

2524, 2528–29. Additionally, the Gilmore court cited Forsham for the proposition

that “[r]ecords of a nonagency can become agency records by contract.” Gilmore, 4

F. Supp. 2d at 917. But in Forsham, whether the agency owned the requested

documents did not “resolve with mathematical precision” the agency records issue.

445 U.S. at 181. Moreover, Forsham held that nonownership suggests that a

document is not an agency record. Id. at 180–81. It is an inverse error to infer from

this that ownership necessarily means that a document is an agency record.

Consequently, we are not persuaded by Gilmore’s reasoning.

      By contrast, the D.C. Circuit has held that ownership is not equivalent to

control and has declined to conclude that documents are “agency records” simply

because an agency has property interests in them. See Judicial Watch, Inc. v. Fed.

Hous. Fin. Agency, 646 F.3d 924, 927 (D.C. Cir. 2011). We agree with the district

court’s assessment that while “ownership is relevant to control,” “the Forest

Service’s ownership amounts to little more than the ability to obtain information,


                                          11
which does not create a duty to obtain information.” Rocky Mountain Wild, 230 F.

Supp. 3d at 1251.

      Rocky Mountain Wild also argues that the requested materials are “agency

records” under 5 U.S.C. § 552(f)(2)(B) because they are contractually maintained by

Western Ecological. Provisions of the employment agreement between LMJV and

Western Ecological require Western Ecological to document all of its work relating

to the preparation of the EIS and to maintain and index those documents “in a system

pursuant to Forest Service direction.” Aplt. App. 102. Rocky Mountain Wild

contends that these provisions render Western Ecological’s documents “agency

records” under § 552(f)(2)(B), which defines “record” as any information that would

be an agency record when maintained by an agency “that is maintained for an agency

by an entity under Government contract, for the purposes of records management”

(emphasis added).

      This is an overexpansive reading of § 552(f)(2)(B). See Am. Small Bus.

League v. U.S. Small Bus. Admin., 623 F.3d 1052, 1053–54 (9th Cir. 2010). As the

court stated in Ryan v. FBI, 113 F. Supp. 3d 356 (D.D.C. 2015), “This provision

primarily addresses the availability of physical documents committed to the custody

of a third-party for storage, and does not necessarily impose an affirmative obligation

to search for and produce documents in the possession of third party contractors.”

113 F. Supp. 3d at 363. Western Ecological was not hired to manage the Forest

Service’s records; it was hired to prepare an EIS. The provisions in the employment

agreement between LMJV and Western Ecological (assuming it can be considered a


                                          12
“government contract”) amount to little more than an agreement that Western

Ecological would document its work in an orderly way.

      Furthermore, the legislative history of the OPEN Government Act, which

added § 552(f)(2)(B) to FOIA in 2007, supports the conclusion that § 552(f)(2)(B)

was not intended to encompass these types of records. See S. Rep. No. 110-59, at 7

(2007) (“This section clarifies that agency records kept by private contractors

licensed by the government to undertake recordkeeping functions remain subject to

FOIA just as if those records were maintained by the relevant government agency.”);

id. at 23–24 (noting that the Department of Justice did not object to the addition of

§ 552(f)(2)(B) “if its intention is solely to clarify that agency-generated records held

by a Government contractor for records-management purposes are subject to FOIA,”

but that it “would have very serious concerns” if it “were intended to disturb over

twenty-five years of settled law by overruling the Forsham and Tax Analysts

decisions”). Accordingly, we reject Rocky Mountain Wild’s argument that the

requested materials are “agency records” under § 552(f)(2)(B).

      As the Forest Service did not create, obtain, or control the requested materials,

we hold that they are not “agency records” subject to FOIA.

      AFFIRMED.




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