Rocky Mountain Wild, Inc. v. United States Forest Serv., No. 17-1119, 2018 WL 299812 (10th Cir. Jan. 5, 2018) (Kelly, J.)

Rocky Mountain Wild, Inc. v. United States Forest Serv., No. 17-1119, 2018 WL 299812 (10th Cir. Jan. 5, 2018) (Kelly, J.)

Re: Request for records in third-party contractors' possession regarding ski development

Disposition: Affirming district court's grant of government's motion for summary judgment

• Procedural Requirements, "Agency Records":  The Court of Appeals for the Tenth Circuit holds that "[a]s the Forest Service did not create, obtain, or control the requested materials, . . . they are not 'agency records' subject to FOIA."  First, the court finds that "private contractors – not the Forest Service – created the requested materials."  Additionally, "[f]or 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."  "The Forest Service did not exercise sufficient control over [the contractor] or the subcontractors for the requested materials to have been created by an 'agency.'"  Moreover, the court finds that "'reliance on a document does not make it an agency record if it has not been created or obtained by a federal agency.'"  "Reliance may be relevant 'to the question of whether a record in the possession of an agency is an "agency record,"' . . . but 'without first establishing that the agency has created or obtained the document, reliance or use is . . . irrelevant[.]'"  "The Forest Service does not possess the documents at issue, making reliance irrelevant."  Second, the court finds that "[b]ecause the Forest Service never possessed the contractor documents, it could not have controlled them at the time of the FOIA request."  Additionally, the court finds that "it does not matter that the Forest Service could possess the documents by requesting them from [the contractor]: 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.'"  The court "agree[s] 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, which does not create a duty to obtain information.'"