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Rocky Mountain Wild, Inc. v. United States Forest Service

United States District Court, D. Colorado

January 27, 2017

ROCKY MOUNTAIN WILD, INC., a Colorado non-profit corporation, Plaintiff,
v.
UNITED STATES FOREST SERVICE, a federal agency, and UNITED STATES DEPARTMENT OF AGRICULTURE, a federal agency, Defendants.

          ORDER ON DEFENDANTS' MOTION FOR DETERMINATION OF LAW

          William J. Martínez United States District Judge

         This is a lawsuit under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. Plaintiff Rocky Mountain Wild, Inc. (“Rocky Mountain Wild”) alleges that Defendant United States Department of Agriculture and its subsidiary, Defendant United States Forest Service (jointly, “the Forest Service”), have not properly responded to a November 2014 FOIA request for various documents. (See ECF No. 1.) Through previous proceedings (see ECF Nos. 53, 60, 61), this dispute has been narrowed down to one remaining category of documents, namely, records in third-party contractors' possession that the Forest Service has never seen or relied upon. The Court invited the Forest Service to file “a motion for a determination of law regarding its FOIA obligations with respect to [those] records.” (ECF No. 61 at 2.) The Forest Service did so, arguing that it has no duty to search for and disclose such records. (ECF No. 62.) For the reasons stated below, the Court agrees with the Forest Services that it has no duty, under the circumstances, to disclose third-party contractors' records that it has never seen or relied upon.

         I. BACKGROUND

         A private entity known as the Leavell-McCombs Joint Venture (“LMJV”) owns a parcel of former Forest Service land near the base of the Wolf Creek Ski Area in southern Colorado. (ECF No. 36 at 2, ¶ 1.)[1] In 2010, LMJV and the Forest Service began exploring a land exchange that would expand LMJV's holdings in the region: about 177 nonfederal acres for 205 federal acres within the Rio Grande National Forest near the Wolf Creek Ski Area. (Id. at 3, ¶ 6.) Apparently LMJV wishes to create a large ski-oriented development known as “the Village at Wolf Creek.” (ECF No. 1 ¶ 3.) The Forest Service therefore began the process of developing an environmental impact statement (“EIS”) for the proposed land exchange. (ECF No. 36 at 3, ¶ 7.)

         In early 2011, the Forest Service entered into a Memorandum of Understanding (“MOU”) with LMJV, the purpose of which was “to document the cooperation between the parties to articulate the working arrangement, conditions and requirements whereby a third-party contractor . . . will be chosen, supervised and directed by the Forest Service to prepare [the EIS].” (ECF No. 36-10 § I.) An entity named Western Ecological Resource, Inc. (“Western Ecological”) was selected as that third-party contractor. (ECF No. 62 at 2.) Western Ecological “agreed to abide by the terms of the MOU.” (Id.) Various terms of the MOU are discussed in greater detail as they become relevant below.

         Western Ecological itself, along with thirteen other subcontractors, “played some role in the environmental analysis.” (Id. at 3.) The Forest Service has already disclosed all of the documents generated by these third parties that were shared with the Forest Service. (Id. at 6.) The Forest Service disclosed some of these documents directly in response to the FOIA request, and additional documents in light of this Court's prior order finding that Rocky Mountain Wild's FOIA request was not limited solely to communications between the Forest Service and third parties, but instead encompassed “all responsive records, including intra-agency communications, but not limited to communications.” (ECF No. 53 at 14.)

         When the Court made this finding, the Court had in mind intra-agency communications (obviously), as well as, potentially, draft documents that the Forest Service had worked on but never “communicated” (such as through an e-mail attachment) and similar materials. The Court was not aware that its order could be construed to apply to records in third parties' possession that had never been shared with the Forest Service. Nonetheless, the Forest Service, apparently taking a broad view of its potential obligations under the Court's order (and commendably so), learned that such documents exist and disclosed that fact to Rocky Mountain Wild. (See ECF No. 62 at 1 n.1.) Specifically, “[t]here are documents and information created or obtained by [Western Ecological], and there are likely to be similar documents created and held by each of the 13 subcontractors, that relate to the Wolf Creek Project in some way, but have never been shared with any [Forest Service] employee.” (Id. at 3.)

         These documents are the subject of Rocky Mountain Wild's and the Forest Service's remaining dispute. The parties agree that “neither the [Forest Service], nor [Rocky Mountain Wild], can say precisely what is in [this] set of records.” (Id. at 11; see also ECF No. 63 at 9.)

         II. ANALYSIS

         The parties' dispute turns on whether the third-party documents are “agency records” within the meaning of FOIA.

         A. Meaning of “Agency Record”

         “Congress undoubtedly sought to expand public rights of access to Government information when it enacted the Freedom of Information Act, but that expansion was a finite one. Congress limited access to ‘agency records, ' 5 U.S.C. § 552(a)(4)(B), but did not provide any definition of ‘agency records' in that Act.” Forsham v. Harris, 445 U.S. 169, 178 (1980) (footnote omitted). The Supreme Court has therefore construed “agency records” as entailing “[t]wo requirements”: (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). The Court will analyze each requirement in turn.

         B. “Create or Obtain”

         Quite surprisingly, the case law regarding records in a third party's possession contains almost no discussion of the “create or obtain” requirement. Courts instead tend to skip directly to the “control” requirement. One notable exception is Burka v. U.S. Department of Health & Human Services, 87 F.3d 508 (D.C. Cir. 1996).

         Burka involved records generated from a large stop-smoking experiment conducted by the National Cancer Institute (“NCI”), a division of the Department of Health and Human Services. Id. at 510. The experiment called for a significant amount of phone surveys and paper questionnaires. Id. at 511-12. NCI contracted with a third party to perform the phone surveys and to gather the paper questionnaires. Id. at 512. The third party then “created computer tapes of the results, ” but it never submitted those computer tapes to NCI. Id.

         In a FOIA lawsuit to compel disclosure of the computer tapes, the D.C. Circuit held that “the extensive supervision and control exercised by [NCI] over collection and analysis of the data indicates that [the third party] acted on behalf of [NCI] in creating the tapes.” Id. at 515. In other words, according to Burka, the “control” requirement can be satisfied to such a degree that the “created” part of the “created or obtained” requirement naturally follows. This is highly questionable given that the Supreme Court's Tax Analysts decision unambiguously treats “created or obtained” and “control” conjunctively-“[t]wo requirements . . . each of which must be satisfied for requested materials to qualify as ‘agency records.'” Tax Analysts, 492 U.S. at 144.

         By implication, however, Burka's approach highlights a blind spot, so to speak, 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. It seems unlikely that the Supreme Court meant to permit such an approach (Tax Analysts was not a case about records in a third party's possession). But if “created” can have a broader meaning-such as “created at the direction of the agency” or, even broader, “created in the course of fulfilling a contract with the agency”-then the distinction between the “created” requirement and the “control” requirement starts to collapse.

         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.

         C. “Control”

         Although Burka contains a brief analysis of “created, ” it is most often cited for certain factors to ...


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