Rocky Mountain Wild Inc v. United States Forest Service et al

Filing 65

ORDER granting 62 Motion for Ruling Regarding Third Party Contractor Records. The parties are ORDERED to file their settlement documents on or before February 28, 2017. ORDERED by Judge William J. Martinez on 01/27/2017. (cthom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 15-cv-0127-WJM-CBS
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

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

1

All ECF page citations are to the page number in the ECF header, which does not
always match the document’s internal pagination.

2

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 W olf 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
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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

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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”

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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 consider when evaluating “control”:
(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.
Burka, 87 F.3d at 515 (internal quotation marks omitted).
As an extra-circuit decision, Burka does not bind this Court. However, there is
no Tenth Circuit authority comparable to Burka, and the parties here both treat the
Burka approach as definitive, if not binding. (See ECF No. 62 at 9–12; ECF No. 63 at
10–12.) Under these circumstances, then, the Court will adopt the Burka approach as
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an aid to evaluating whether the Forest Service “controls” the third-party records for
FOIA purposes. Because the first and second Burka factors are closely linked in this
case, the Court will analyze them together. The Court will then analyze the third and
fourth factors individually.
1.

Factors 1 & 2

The first and second factors turn largely on the significance of certain contractual
provisions.
a.

The Work Product Provisions

To begin, the MOU and the employment agreement by which Western
Ecological was formally hired both contain a requirement stating that Western
Ecological’s work product “will be considered Forest Service work product owned by the
Forest Service.” (ECF No. 36-10 § IV.B.iv; ECF No. 63-1 ¶ iv.) This suggests that
Western Ecological 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 Western Ecological’s
work product as it sees fit.
b.

The FOIA Provisions

Rocky Mountain Wild claims that two portions of the MOU express the Forest
Service’ intent to treat all Western Ecological work product as subject to FOIA. (ECF
No. 63 at 2.) The first cited portion, MOU § IV.H, actually obligates LMJV, not Western
Ecological, to respond to FOIA requests “within established time frames provided by the
Forest Service.” (ECF No. 36-10 at 7.) Thus, it has nothing to do with Western
Ecological or its subcontractors. Moreover, given that FOIA requests may only be

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made to government agencies, not private parties,2 the language of this provision
obviously refers to circumstances where the Forest Service has received a FOIA
request and requires the assistance of LMJV to fulfill that request. It says nothing
necessarily about an intent to treat LMJV’s (or any other third party’s) records as the
Forest Service’s own for FOIA purposes.
The second cited portion, MOU § V.I, announces that the Forest Serv ice will
respond to FOIA requests and may disclose information obtained from third parties:
If [LMJV], [Western Ecological] or any subcontractors have
provided the Forest Service with business information that
would be responsive to a FOIA . . . request, the Forest
Service will provide [LMJV], [Western Ecological] or any
subcontractors with prompt notification of any request for
that information under FOIA. [LMJV], [W estern Ecological]
or any subcontractors will be given reasonable time to assert
privilege on information or records considered proprietary
under FOIA. [LMJV], [Western Ecological] or any
subcontractors will be notified of the Forest Service’s
determination regarding disclosure of such records prior to
the disclosure date. The Forest Service retains the right and
authority to determine what is releasable in accordance with
FOIA.
(Id. at 8 (emphasis added).) This provision only reinforces the notion that information
gathered by an agency from third parties may be subject to FOIA. It does not create a
duty to gather such information.
The Court notes, however, another provision that seems to have relevance to
FOIA. Western Ecological’s employment agreement states that, “[i]f a legal challenge

2

FOIA applies to “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), [and] any independent
regulatory agency.” 5 U.S.C. § 552(f)(1).

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arises to the Force Service’s legal compliance for this Project, [Western Ecological] and
any subcontractors, must make available to the Forest Service any information
requested by the Forest Service.” (ECF No. 63-1 ¶ xvi.) This once again creates a
right of access, although not necessarily a duty of access.
c.

Evaluation

The foregoing contractual provisions favor Rocky Mountain Wild on the first and
second factors of the Burka test. Although not all of these provisions are directly
relevant, the Forest Service certainly claims an ownership interest in Western
Ecological’s and its subcontractors’ work product, and it can do as it pleases with those
records.3
2.

Factor 3

The third Burka factor—the extent to which agency personnel have read or relied
upon the document—favors the Forest Service. It is undisputed that Forest Service
employees have never seen the records at issue here, and the Court is f rankly troubled
by Rocky Mountain Wild’s attempt to argue otherwise. Rocky Mountain Wild asserts
that Forest Service personnel and decisionmakers “relied upon [Western Ecological’s]
studies, data, and analysis in the withheld documents, which were used to create the
3

Rocky Mountain Wild cites Gilmore v. U.S. Department of Energy, 4 F. Supp. 2d 912
(N.D. Cal. 1998), which essentially concludes that contractual ownership of the kind present
here automatically satisfies all of the requirements for deeming a third-party record to be an
agency record. See id. at 917 (“Records of a nonagency can become agency records by
contract.”). Contractual ownership is, of course, an important consideration, but the Court
cannot agree with Gilmore that it is all-encompassing, at least not here. As for the other case
Rocky Mountain Wild cites along these same lines, In Defense of Animals v. National Institutes
of Health, 543 F. Supp. 2d 70 (D.D.C. 2008), the Court finds it inapposite. In Defense of
Animals involved records that had been acquired by the government, and which were stored on
government property. Id. at 76–77. The only third-party relationship involved was a contractor
that operated the government facility and kept the records current. Id. at 74.

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documents required by federal law [such as the EIS].” (ECF No. 63 at 11 (emphasis
added).) This is essentially a charge of blatant dishonesty on the Forest Service’s part,
and it is made without any citation to evidence. Moreover, it contradicts Rocky
Mountain Wild’s position earlier in its brief. Its “Factual Background” section never
disputes the Forest Service’s claim that it has never seen or relied upon the third-party
documents. (See id. at 3–5.) In addition, Rocky Mountain Wild affirms the Forest
Service’s position by arguing that this Court should not “allow privately funded private
contractors to retain sole knowledge of information in documents created and obtained
when carrying out the Forest Service’s legal mandates.” (Id. at 9.) The Court can only
interpret this unsupported and otherwise contradictory course of argument as an implicit
concession that the third factor strongly favors the Forest Service.
3.

Factor 4

The 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. The Court is again troubled by Rocky Mountain Wild’s
attempt to argue otherwise. It asserts, “A key function of the MOU required contractor
records integration into the agency’s record system.” (Id. at 12.) It again cites nothing
to support this assertion. Later in the paragraph, Rocky Mountain Wild cites MOU
§ IV.B.ix, but that section does not support Rocky Mountain Wild’s characterization of
Western Ecological’s duties. Rather, it states that W estern Ecological must maintain an
index of documents it considered in the decisionmaking process, and must make a
“similar and compatible” index of “the Forest Service records,” i.e., records the Forest
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Service makes available to Western Ecological (not the other way around). (ECF No.
36-10 at 5.)
Rocky Mountain Wild further argues, “It makes no difference that records were
not physically maintained in the Forest Service files or databases.” (ECF No. 63 at 12.)
To the contrary, this makes a significant difference in the fourth Burka factor, which
inquires whether the records are integrated into the agency’s record system or files.
The fact that records are kept elsewhere is not dispositive because none of the Burka
factors are dispositive, but it is simply incorrect to say that it “makes no difference.”
As with the third factor, the Court can only interpret this misleading and
inaccurate course of argument as a concession that the fourth factor strongly favors the
Forest Service.
4.

Additional Considerations & Synthesis

The Burka factors are evenly divided in terms of which party they favor, and the
Court finds this to be a close question overall. The Court is concerned, like Rocky
Mountain Wild, 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.
First, there is no indication that the third-party records are anything but peripheral
and irrelevant to illuminating the Forest Service’s decisionmaking. “The public cannot
learn anything about agency decisionmaking from a document the agency neither
created nor consulted, and requiring disclosure under these circumstances would do
nothing to further FOIA's purpose of ‘open[ing] agency action to the light of public
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scrutiny.’” Judicial Watch, Inc. v. Fed. Hous. Fin. Agency, 646 F.3d 924, 927 (D.C. Cir.
2011) (quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 372 (1976)) (alteration in
original).
Second, as noted in Part I, above, the Court never contemplated that its prior
order regarding the scope of the FOIA request could extend to the third-party records.
Rocky Mountain Wild’s FOIA request does not obviously seek such records. (See ECF
No. 36-2 at 2–3.) 4
Third, the significance of the first and second factors favoring Rocky Mountain
Wild is somewhat diminished here. Burka and its progeny “have never suggested that
ownership means control.” Judicial Watch, 646 F.3d at 927. Again, Burka is not
binding, and this Court certainly believes that ownership is relevant to control. But 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. See Forsham, 445
U.S. at 186 (“an unexercised right of access” has no FOIA significance). Weighed
against the fact that Forest Service employees have never obtained or even seen the
records at issue, the Court finds that the Forest Service does not exercise sufficient
“control” to make those records “agency records” for FOIA purposes.

4

Rocky Mountain Wild’s response brief attempts to argue otherwise, but only through
yet another misrepresentation of the record. Rocky Mountain Wild flatly states that its FOIA
request “included Forest Service contractors” and then quotes the request’s definition of
“entity,” which includes “contractors” and “any other person acting on the entity’s behalf.” (ECF
No. 63 at 1.) But the FOIA request only uses the word “entity” (singular or plural) as part of
specific requests that the Forest Service disclose its communications with outside parties.
Thus, the FOIA request certainly included communications between the Forest Service and its
contractors, but it was not directed to Forest Service contractors themselves—nor could it have
been, given that contractors are not within the definition of “agency.” (See n.2, supra.)

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D.

Effect of the OPEN Government Act
As discussed in Part II.A, above, FOIA does not define “agency record.” Indeed,

the only provision that comes close to such a definition is actually circular, in that it
assumes one already knows the definition of “agency record”:
“record” and any other term used in this section in reference
to information includes—
(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.
5 U.S.C. § 552(f)(2). Rocky Mountain Wild argues that subparagraph (B), which was
added to the statute through § 9 of the OPEN Government Act of 2007, Pub. L. No.
110-175, 121 Stat. 2524, imposes a duty on the Forest Service to retrieve all third-party
contractor records. The Court disagrees.
For present purposes, two aspects of the amendment are salient. First, 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.” This latter phrase must narrow the
application of subparagraph (B) in some respect.
Cases that have specifically considered the amendment have so far uniformly
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found that it refers to contracts specifically aimed at managing (i.e., storing, indexing,
etc.) information generated by or submitted to an agency. See Am. Small Bus. League
v. U.S. Small Bus. Admin., 623 F.3d 1052, 1053 (9th Cir. 2010) (“Here, it is undisputed
that Verizon did not maintain the phone records pursuant to a records-m anagement
contract with SBA.”); Se. Legal Found., Inc. v. EPA, 181 F. Supp. 3d 1063, 1087 (N.D.
Ga. 2016) (finding subparagraph (B) applicable where the EPA had contracted with a
third party to index and track FOIA requests); Ryan v. FBI, 113 F. Supp. 3d 356, 363
(D.D.C. 2015) (“This provision primarily addresses the availability of physical
documents committed to the custody of a third-party for storage, and does not
necessarily impose an affirmative obligation to search for and produce documents in
the possession of third party contractors.”).
Rocky Mountain Wild claims, however, that a guidance document from the
Justice Department’s Office of Information Policy supports its interpretation. (ECF No.
63 (citing ECF No. 63-2).) It is not clear whether this is another misrepresentation or
simply a failure to read the entire document, but DOJ’s guidance is quite the contrary:
[Subparagraph (B)] 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.

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(ECF No. 63-2 at 2.)5
The Court finds the foregoing interpretations consistent with the language and
apparent purpose of the amendment, and therefore agrees with them. In that light,
subparagraph (B) does not apply here. Although one of Western Ecological’s
contractual duties was to keep track of documents and generate the administrative
record supporting the EIS (see ECF No. 63-1 ¶ ix), it cannot be fairly said that Western
Ecological was hired for records management. The primary purpose of the contract
was to prepare the EIS itself; document management was only one of many subsidiary
tasks related to that purpose. (See ECF No. 63-1 at 1 (“[Western Ecological] will serve
as the Prime Consultant for the purpose of preparing the EIS analyzing the proposed
Village at Wolf Creek Land Exchange. In this capacity, [Western Ecological] will
perform [various] responsibilities [including, among numerous others, preparing the
administrative record].”).) In any event, even if Western Ecological could be deemed to
have managed the Forest Service’s records for purposes of subparagraph (B), that
subparagraph would still only extend to whatever documents the Forest Service sent to
Western Ecological, not to documents Western Ecological generated and kept for itself.
The Court accordingly rejects Rocky Mountain Wild’s argument that the OPEN
Government Act expands Rocky Mountain Wild’s FOIA duties in any way relevant to
this case.

5

This guidance document is also available at https://www.justice.gov/oip/blog/
foia-post-2008-summaries-new-decisions-july-2008 (last accessed Jan. 26, 2017).

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III. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

The Forest Service’s Motion for Determination of Law (ECF No. 62) is
GRANTED and the Court HOLDS that, in the circumstances presented here, 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; and

2.

In light of the parties’ status report stating that, apart from the dispute resolved in
this order, they are prepared to “fil[e] . . . settlement documents addressing the
merits of the Freedom of Information Act claims in the next 30 days, followed by
a 30-day period to attempt resolution of Plaintiff’s fees and costs claims before
initiating motions practice” (ECF No. 60 at 1), the parties are ORDERED to f ile
their settlement documents on or before February 28, 2017.
Dated this 27th day of January, 2017.
BY THE COURT:

William J. Martínez
United States District Judge

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