Rocky Mt. Wild, Inc. v. U.S. Forest Serv., No. 15-0127, 2017 U.S. Dist. LEXIS 11533 (D. Colo. Jan. 27, 2017) (Martínez, J.)

Rocky Mt. Wild, Inc. v. U.S. Forest Serv., No. 15-0127, 2017 U.S. Dist. LEXIS 11533 (D. Colo. Jan. 27, 2017) (Martínez, J.)

Re: Request for Forest Service's communications with third parties regarding ski-oriented development

Disposition: Granting defendant's motion for determination of law

• Procedural Requirements, "Agency Records": The court holds that "the Forest Service has no duty under the Freedom of Information Act to search for and disclose records in third parties' possession that the Forest Service has never seen or relied upon." "Because the Court finds that the 'control' requirement is not satisfied here, as discussed below, the Court need not definitively settle whether the Forest Service can be deemed to have created the third-party records at issue here." "Solely for argument's sake, the remainder of this order assumes that the third parties would never have created the records in question but for their contractual relationship with the Forest Service, and in that sense the Forest Service can therefore be deemed the creator of the records." Turning to the control factors, the court finds that "[t]he . . . contractual provisions favor [plaintiff] on the first and second factors of the Burka test." The court explains that, "[t]o begin, the MOU and the employment agreement by which [the third party] was formally hired both contain a requirement stating that [the third party's] work product 'will be considered Forest Service work product owned by the Forest Service.'" "This suggests that [the third party] had little or no intent to retain control over its work product, and that the Forest Service has the ability to access, use, and dispose of [the third party's] work product as it sees fit." However, the court also finds that "[t]he third Burka factor – the extent to which agency personnel have read or relied upon the document – favors the Forest Service." The court explains that "[i]t is undisputed that Forest Service employees have never seen the records at issue here[.]" The court also finds that "[t]he fourth Burka factor – the degree to which the document was integrated into the agency's record system or files – also favors the Forest Service, since these records have never been in the Forest Service's possession and therefore could not have been integrated into its record system." Overall, "[t]he Court is concerned, like [plaintiff], that an agency could employ a third party contractor to insulate itself from FOIA obligations." "Ultimately, however, the Court finds that the Burka factors and certain additional considerations counsel in favor of finding that the Forest Service lacks 'control' over the records in question." The court explains that "there is no indication that the third-party records are anything but peripheral and irrelevant to illuminating the Forest Service's decisionmaking[,]" and "at present, the Forest Service's ownership amounts to little more than the ability to obtain information, which does not create a duty to obtain information." On the later point, the court clarifies that "Burka and its progeny 'have never suggested that ownership means control[,]'" but rather, "[the] Court certainly believes that ownership is relevant to control." Finally, "[t]he Court accordingly rejects [plaintiff's] argument that the OPEN Government Act expands [defendants'] FOIA duties in any way relevant to this case." The court explains that "[f]irst, it applies only to 'information described under subparagraph (A),' or in other words, information that is already an 'agency record.'" "Thus, it does mandate a broader treatment of 'agency record' than the term has thus far received." "Second, if Congress had intended subparagraph (B) to apply to all records 'maintained for an agency by an entity under Government contract,' then it would not have qualified that category with 'for the purposes of records management.'"