Section 9 of the OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524, amended subsection (f)(2) of the Freedom of Information Act (FOIA), which contains the definition of the term “record.” Section 9 provides that agency records “maintained for an agency by an entity under Government contract, for the purposes of records management,” remain subject to the FOIA. This statutory provision clarifies existing law and was not intended to disturb settled case law defining the term “agency record.” Instead, the straight-forward purpose of the new provision was to make clear that agency records remain subject to the FOIA even if they have been placed in the physical possession of a government contractor for purposes of records management.
Since 1996 the FOIA has defined the term “record” as including “any information that would be an agency record subject to the requirements of [the FOIA] when maintained by an agency in any format, including an electronic format.” 5 U.S.C. § 552(f)(2). Agencies have long applied the two-part test established by the Supreme Court in United States Department of Justice v. Tax Analysts, 492 U.S. 136, 144-45 (1989), when determining whether a record is an agency record subject to the FOIA.
Under Tax Analysts, an agency first “must ‘either create or obtain’ the requested materials” and second, “the agency must be in control of the requested materials at the time the FOIA request is made.” Id. The Supreme Court elaborated that “[b]y control [it meant] that the materials have come into the agency’s possession in the legitimate conduct of its official duties.” Id. at 145. The Court of Appeals for the District of Columbia Circuit has found that “control” over a record maintained by a government contractor is the key consideration in the agency record analysis. See Burka v. HHS, 87 F.3d 508, 515 (D.C. Cir. 1996) (finding that data tapes not “currently located on agency property,” are nonetheless “agency records” due to “the extensive supervision and control exercised by the agency” over the documents). In determining whether an agency has “control” of a document, the D.C. Circuit has identified the following four factors as relevant to the analysis: “‘(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.’” Id. (quoting D.C. Circuit opinion in Tax Analysts v. Dep’t of Justice, 845 F.2d 1060, 1069 (D.C. Cir. 1988) (citation omitted), aff’d on other grounds, 492 U.S. 136 (1989)).
With passage of Section 9 of the OPEN Government Act, Congress retained its previous definition of the term “record,” and added a new provision specifically addressing the status of any agency records that might be in the possession of government contractors for the purposes of records management. As amended, subsection (f)(2) of the FOIA now defines a “record” to include:
(A) any information that would be an agency record subject to the requirements of this section when maintained by an agency in any format, including an electronic format; and
(B) any information described under subparagraph (A) that is maintained for an agency by an entity under Government contract, for the purposes of records management. (text added via OPEN Government Act italicized).
The first part of Section 9 (the new paragraph “B” in the definition) delimits the reach of this new provision. By referring to “any information described under subparagraph A,” Congress made clear that the new provision pertains to records that fit within the pre-existing definition of the term “agency records” under the FOIA. In making that initial determination, agencies should continue to utilize the test set out by the Supreme Court in Tax Analysts.
The second part of Section 9 provides that when such agency records are “maintained for an agency by an entity under Government contract, for the purposes of records management” those records remain “agency records” subject to the FOIA (emphasis added). This provision thus addresses the distinct situation where an agency relinquishes possession of its agency records to a contractor for the purposes of records management. In such situations those records remain subject to the FOIA, just as if possession had not been transferred. In other words, when records have merely been removed to the possession of a government contractor for the purposes of records management, those agency records remain subject to the FOIA even though they are no longer in the physical custody of the agency.
The legislative history of the OPEN Government Act reflects this straight-forward purpose behind the new provision. Senator Leahy explained that Section 9 “clarifies that FOIA applies to agency records that are held by outside private contractors, no matter where those records are located.” 153 Cong. Rec. S15831 (daily ed. Dec. 18, 2007) (statement of Sen. Leahy); see also, 153 Cong. Rec. S14849 (daily ed. Dec. 6, 2007) (same); 153 Cong. Rec. S10987 (daily ed. Aug. 3, 2007) (same). Similarly, Senator Leahy described the intent behind an earlier version of the provision this way: “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.” S. Rep. No. 110-59, at 7 (2007).
Thus, both the clear language of the new statutory provision, as well as its legislative history, make clear that this provision is intended to ensure that in the event an agency gives up possession of its agency records by transferring them to a contractor for purposes of records management, those records remain subject to the FOIA. Such a situation could occur when, for example, an agency contracts with an entity to store, organize, or manage its records.
In light of Section 9 of the OPEN Government Act, it is important for agencies to ensure that their searches for records in response to FOIA requests include any potentially responsive agency records that may be in the possession of an entity under contract with the agency for purposes of records management. Any agency employing such a government contractor to manage or store its records must institute appropriate procedures to allow it to search for and identify agency records that may be responsive to a FOIA request that are in the possession of that records management-contractor. Given that the clear intent of this provision is to clarify that the location of the agency records in the hands of the contractor for records management purposes does not remove the records from the scope of the FOIA, such records must be capable of being searched in response to FOIA requests. If responsive agency records are located in the possession of the records management-contractor, they should be forwarded to the appropriate FOIA office within the agency for processing. Such records must be identified and handled by the agency just as if they had been in the possession of the agency in the first instance.
The OPEN Government Act amended the FOIA's definition of a “record” to clarify that that term includes those agency records maintained for an agency by a government contractor for purposes of records management. Such records, even though not physically in the possession of the agency, are by law, still “agency records” subject to the FOIA. When in receipt of a FOIA request that reasonably may encompass agency records in the possession of such a records management-contractor, agencies must ensure that they have procedures that enable them to search and process those records in response to the FOIA request. (posted 09/09/2008)
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