FOIA Update: FOIA Counselor: What is an "Agency Record?"

January 1, 1980

FOIA Update
Vol. II, No. 1
1980

FOIA Counselor


What is an "Agency Record?"

• A government employee's personal notes are not agency records unless . . .

• A record generated by the legislative or judicial branch is not an agency record provided . . . .

• Records generated by federal grantees are not agency records unless . . .

These examples illustrate the uncertainties and complexities of determining whether material requested under FOIA are "agency records" for purposes of that statute. The reason this issue is important is that FOIA only empowers federal district courts to enjoin agencies "from withholding agency records." 5 U.S.C. § 552(a)(4)(B). Thus, if records are determined not to be agency records, the courts have no power to order their release.

As a starting point, the phrase "agency records" may be said to include most "records" in the possession of an "agency." Thus, we must first understand the meaning of the terms "agency" and "records." "Agency" is a defined term in FOIA (5 U.S.C. § 552(e)) and several cases have discussed what constitutes an agency for FOIA purposes. (See FOIA Case List.)

"Records" is not a statutorily defined term in FOIA. In fact it appears that the only definition of this term in the U.S. Code is that in the Federal Records Act. 44 U.S.C. § 3301. This definition is intended, however, only to define those categories of materials "made or received by an agency of the United States Government . . ." which must be preserved except as authorized by the Archivist. As used in FOIA, the term generally includes everything mentioned in this definition. But the Federal Records Act was passed for records management purposes, while FOIA was passed to strengthen the public's right to know. It seems clear that for FOIA purposes, "records" includes all tangible recordations of information regardless of whether they are records under 44 U.S.C. § 3301. For example, records under FOIA are not limited to written documents. Save the Dolphins v. U.S. Dept. of Commerce, 404 F. Supp. 407 (N.D. Cal. 1975) found a movie on techniques involved in tuna fishing a record. Another court found that the rifle and the bullet remains from the Kennedy assassination were not records as those articles contained no information in language or other symbols. Nichols v. United States, 325 F. Supp. 130 (D. Kan. 1971).

Since FOIA applies only to agency records, the mere fact that an item is a record does not automatically mean that it can be reached by a FOIA request. There has been an increasing amount of litigation over this issue of whether records are also agency records.

The leading case on this question is Forsham v. Harris, __U.S.__, 48 U.S.L.W. 4232 (Mar. 3, 1980), in which the Supreme Court held that records which had been generated by private grantees of the (then) Department of Health, Education and Welfare (HEW) working under a grant, and which had always remained in the grantees' possession, were not agency records despite the facts that HEW had a contract right to obtain copies of the records, and that it had used a report (which was an agency record) based on them in an agency deliberative process.

AGENCY MUST "CREATE OR OBTAIN A RECORD"

The Court said "that an agency must first either create or obtain a record as a prerequisite to it becoming an agency record within the meaning of the FOIA." In effect, HEW had an option to obtain the records; but, since it did not exercise the option, the records remained those of the grantee.

The Court's decision reflects concepts from the law of personal property, in which possession indicates ownership and control unless another person has a better claim to the property. Thus, a strong presumption exists that when a record is in an agency's possession, it is an "agency record" for FOIA purposes. This presumption is not affected by the fact that an entity which is not an agency may also have a copy of the record but, as explained below, it may be rebutted by other factors.

Prior to the Forsham decision, lower federal courts had recognized that records generated by, and obtained by an agency from the federal judiciary, or from Congress, might not be agency records. See, e.g., Cook v. Willingham, 400 F.2d 885 (10th Cir. 1968) (judicial records); Goland v. Central Intelligence Agency, 607 F.2d 339 (D.C. Cir. 1978), vacated in part, reh'g denied, 607 F.2d 367 (D.C. Cir. 1979) (Congressional records). In Goland, there was clear evidence of Congress' intent not to relinquish control of the record in question at the time it was transferred to the agency.

The court's holding in Cook has been called at least partially into question by a recent decision of the D.C. Circuit. Carson v. U.S. Dept. of Justice, __ F.2d__ (D.C. Cir. 1980). The court held that a presentence report (the same category of record at issue in Cook), at least once in the hands of the Parole Commission, was an agency record. It discussed Cook but based its decision on changed circumstances which had "both reduced the control over the report vested in the originating body and increased the control vested in the agency in whose possession the document resides." Slip opinion at 7.

"PERSONAL RECORDS"

Another aspect of "agency records" is the concept of "personal records." In the leading case on this point, the court held that notes made by an agency employee could be his own and outside the FOIA concept of "agency records" if they were made and kept purely voluntarily and "not circulated to nor used by anyone other than the authors, and are discarded or retained at author's sole discretion for their own individual purposes in their own personal files." Porter County Chap., Etc. v. U.S.A.E.C., 380 F. Supp. 630, 633 (N.D. Ind. 1974). The decision is a sound one because such notes are nothing more than an adjunct to the individual's own memory and thoughts. But the rule is not appropriate for expansion. The problem was again faced in the lower court opinions leading to the Supreme Court's decision in Kissinger v. Reporters Committee, __ U.S.__, 48 U.S.L.W. 4223 (Mar. 3, 1980). The lower courts, in actions consistent with Porter County but without citing it, rejected arguments that transcripts of Kissinger's phone calls while Secretary of State were personal records rather than agency ones. Those transcripts had been available to some of Kissinger's assistants, which violated the Porter County standard. The Supreme Court, however, did not address this issue.

Questions have been raised as to whether other types of records in an agency's possession are agency records. In general, the courts have been extremely reluctant to accept arguments that they are not. To accept such an argument forecloses any consideration of whether or not access should be granted. See, e.g., Weisberg v. Department of Justice, 627 F.2d 365 (D.C. Cir. 1980) (copyrighted materials); Crooker v. Office of the Pardon Attorney, 614 F.2d 825 (2d Cir. 1980) (records of the Office of the Pardon Attorney); Ryan v. Department of Justice, 617 F.2d 781 (D.C. Cir. 1980) (senators' responses to a questionnaire concerning their procedures for selecting recommended candidates for federal judgeships); Government Sales Consultants, Inc. v. G.S.A., No. 77-1294 (D.D.C. 1979) (contract proposals).

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