Rocky Mountain Wild, Inc. v. U.S. Forest Serv.

878 F.3d 1258

ROCKY MOUNTAIN WILD, INC., a Colorado non-profit corporation, Plaintiff–Appellant,

v.UNITED STATES FOREST SERVICE, a federal agency; United States Department of Agriculture, a federal agency, Defendants–Appellees.

No. 17-1119

United States Court of Appeals, Tenth Circuit.

FILED January 5, 2018

Travis E. Stills of Energy and Conservation Law (and Matthew Sandler of Rocky Mountain Wild, Denver, Colorado, on the briefs), Durango, Colorado, for Plaintiff–Appellant.

Karl L. Schock, Assistant United States Attorney (and Robert C. Troyer, Acting United States Attorney, on the brief), Denver, Colorado, for Defendants–Appellees.

Before, PHILLIPS, KELLY, and McHUGH, Circuit Judges.

KELLY, Circuit Judge.

Plaintiff-Appellant Rocky Mountain Wild appeals from the district court’s determination of law that Defendant-Appellee U.S. Forest Service has no duty under the Freedom of Information Act (FOIA) to disclose unseen documents in possession of third-party contractors. Rocky Mountain Wild, Inc. v. U.S. Forest Serv., 230 F.Supp.3d 1245, 1246 (D. Colo. 2017). The question on appeal is whether the documents are "agency records" within the meaning of FOIA. We have jurisdiction under 28 U.S.C. § 1291 and affirm because the documents were not created, obtained, or controlled by the Forest Service.

Background

The underlying dispute arises from Rocky Mountain Wild’s FOIA request concerning a land exchange proposal called the Wolf Creek Project. Aplee. Supp. App. 2–4. The project proponent, the Leavell-McCombs Joint Venture (LMJV), wanted to exchange privately owned land for federal land within the Rio Grande National Forest. Id. at 2–3. LMJV and the Forest Service entered into a Memorandum of Understanding (MOU) whereby LMJV agreed to hire a third-party contractor to prepare an environmental impact statement (EIS) for the proposed exchange. Aplt. App. 145. They selected Western Ecological Resource, Inc., to prepare the EIS in accordance with the MOU, and LMJV and Western Ecological entered into an employment agreement to that effect. Id. at 101. After distributing a draft for public comment, the Forest Service published the final EIS, and Rocky Mountain Wild filed its FOIA request that same day. Aplee. Supp. App. 3–4.

Rocky Mountain Wild and the Forest Service were able to agree on the disclosure of all requested materials except for one category: documents in Western Ecological’s (and 13 subcontractors’) possession that were never shared with the Forest Service. Rocky Mountain Wild, 230 F.Supp.3d at 1246–47. The Forest Service filed a motion for a determination of law regarding its obligation under FOIA to produce these records, and the district court ruled that the Forest Service has "no duty, under the circumstances, to disclose third-party contractors' records that it has never seen or relied upon." Id. at 1246. Specifically, the district court assumed (for the sake of argument) that the Forest Service created the records, id. at 1248, and held that "the Forest Service does not exercise sufficient ‘control’ to make those records ‘agency records’ for FOIA purposes," id. at 1252.

Discussion

Whether an agency has improperly withheld a record from a FOIA request is a question of law that we review de novo. See Trentadue v. Integrity Comm., 501 F.3d 1215, 1226 (10th Cir. 2007). Here, the Forest Service argues that the contractor documents were not improperly withheld, because they are not "agency records" subject to FOIA. To be "agency records," (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, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989) (quoting Forsham v. Harris, 445 U.S. 169, 182, 100 S.Ct. 977, 63 L.Ed.2d 293 (1980) ). The burden is on the agency to demonstrate that the requested materials are not agency records. Id. at 142 n.3, 109 S.Ct. 2841.

A. Whether the Forest Service Created or Obtained the Requested Materials

The first issue is whether the Forest Service created or obtained the requested materials. By FOIA’s terms, an "agency" "includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency." 5 U.S.C. § 552(f)(1) (2012). "In general, FOIA ... does not apply to private companies, persons who receive federal contracts or grants, private organizations, or state or local governments." H.R. Rep. No. 112-689, at 5 (2012) (footnote omitted).

Here, private contractors—not the Forest Service—created the requested materials. For 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. Forsham, 445 U.S. at 180 n.11, 100 S.Ct. 977. "A critical element in distinguishing an agency from a contractor is the power of the Federal Government ‘to control the detailed physical performance of the contractor.’ " United States v. Orleans, 425 U.S. 807, 814, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976) (quoting Logue v. United States, 412 U.S. 521, 528, 93 S.Ct. 2215, 37 L.Ed.2d 121 (1973) ). Taking "action to compel compliance with federal standards" or fixing "specific and precise conditions to implement federal objectives" is not substantial enough federal supervision for a private organization to be considered a federal agency. Id. at 815–16, 96 S.Ct. 1971.

The Forest Service did not exercise sufficient control over Western Ecological or the subcontractors for the requested materials to have been created by an "agency." The employment agreement between LMJV and Western Ecological provided that the EIS would "be prepared under Forest Service supervision," Aplt. App. 101, but that supervision consisted of meeting with and briefing the Forest Service on various topics and working closely with the Forest Service to complete a list of tasks, see id. at 102–03. This does not constitute detailed control over the contractor’s day-to-day performance that would make the contractor a federal instrumentality or FOIA agency. See Forsham, 445 U.S. at 180, 100 S.Ct. 977.

The term "agency records" applies not only to materials generated within an agency, but also to materials acquired from outside organizations. Tax Analysts, 492 U.S. at 144–45, 109 S.Ct. 2841 ("The legislative history of the FOIA abounds with ... references to records acquired by an agency." (quoting Forsham, 445 U.S. at 184, 100 S.Ct. 977 )). Whether materials are "agency records" does not "turn on the intent of the creator." Tax Analysts, 492 U.S. at 147, 109 S.Ct. 2841. That is, the definition of "agency records" does not depend on whether materials originating outside an agency were "prepared substantially to be relied upon in agency decisionmaking." Id. If the materials were not created by the agency itself and were never acquired by the agency, the materials are not "agency records" even if they were prepared by a contractor acting on the agency’s behalf. See Forsham, 445 U.S. at 171, 100 S.Ct. 977.

Rocky Mountain Wild does not argue that the Forest Service has ever acquired or seen the requested materials. Instead, it argues that documents relied upon or indirectly considered by an agency are "agency records." However, "reliance on a document does not make it an agency record if it has not been created or obtained by a federal agency." Forsham, 445 U.S. at 177 n.7, 100 S.Ct. 977. Reliance may be relevant "to the question of whether a record in the possession of an agency is an ‘agency record,’ " id. (emphasis added), but "without first establishing that the agency has created or obtained the document, reliance or use is ... irrelevant," id. at 186, 100 S.Ct. 977. The Forest Service does not possess the documents at issue, making reliance irrelevant.

Rocky Mountain Wild also argues that the Forest Service "accepted" the records by indirectly relying on them, citing Bar MK Ranches v. Yuetter, 994 F.2d 735 (10th Cir. 1993), and Rohrbough v. Harris, 549 F.3d 1313 (10th Cir. 2008). But the cited language from Bar MK Ranches concerns the scope of the administrative record—not the definition of "agency record"—for the purposes of challenging agency action under the Administrative Procedure Act (APA). See 994 F.2d at 739. And while the court in Rohrbough stated, "If a judge makes a decision based on materials presented to him or her, even if the materials are not formally filed, they could be said to be ‘accepted’ by agency personnel," 549 F.3d at 1318, this language is inapposite here, where the requested materials were never presented to the agency.

The district court expressed concern over a perceived "blind spot" 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.

Rocky Mountain Wild, 230 F.Supp.3d at 1248. However, those facts are not present here. Regardless, the above scenario can be remedied through the APA, rather than FOIA. As the court explained in Bar MK Ranches, under the APA, a district court reviews an agency action based on the full administrative record (not merely on agency records), which "consists of all documents and materials directly or indirectly considered by the agency."¹ 994 F.2d at 739.

Here, private contractors, not the Forest Service, created the documents. And as the Forest Service has never even seen the requested materials, it cannot be fairly said...