PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

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 

_________________________________ 

Appeal from the United States District Court 

for the District of Colorado 

(D.C. No. 1:15-CV-00127-WJM-CBS)

_________________________________ 

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. 

_________________________________ 

FILED 

United States Court of Appeals 

Tenth Circuit 

January 5, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

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. 
3 

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 (1989) (quoting Forsham v. Harris, 445 U.S. 
4 

169, 182 (1980)). The burden is on the agency to demonstrate that the requested 

materials are not agency records. Id. at 142 n.3. 

 
5 

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. “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 (1976) (quoting Logue v. 

United States, 412 U.S. 521, 528 (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. 

The Forest Service did not exercise sufficient control over Western Ecological 

or the subcontractors for the requested materials to have been created by an 
6 

“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. 

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 (“The legislative history of the FOIA abounds with . . . references to 

records acquired by an agency.” (quoting Forsham, 445 U.S. at 184)). Whether 

materials are “agency records” does not “turn on the intent of the creator.” Tax 

Analysts, 492 U.S. at 147. 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. 

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 
7 

a federal agency.” Forsham, 445 U.S. at 177 n.7. 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. 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 onsite visit), and then instructing the contractor only to transmit a 

particular subset of work product back to the agency. 
8 

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 that the Forest Service ever obtained them. Accordingly, the Forest Service has 

met its burden of showing that the contractor documents do not satisfy the first part 

of Tax Analysts’ definition of “agency records.” 

B. Whether the Forest Service Controlled the Requested Materials 

For the requested materials to constitute “agency records,” the Forest Service 

must also have controlled the materials at the time of the FOIA request. See Tax 

Analysts, 492 U.S. at 145. “By control we mean that the materials have come into 

the agency’s possession in the legitimate conduct of its official duties.” Id. 

(emphasis added). Rocky Mountain Wild concedes that the Forest Service does not 

possess the contractor documents but nevertheless argues that the terms of the MOU 

and employment agreement grant the Forest Service control over the documents. 

 1

 In fact, Rocky Mountain Wild brought a challenge to the adequacy of the 

administrative record — and succeeded — in a separate district court proceeding. 

See Rocky Mountain Wild v. Dallas, No. 15-cv-01342-RPM (D. Colo. May 19, 

2017), ECF No. 67. 
9 

We disagree. The employment agreement between LMJV and Western 

Ecological contains a provision that in the event of a legal challenge to the Wolf 

Creek Project, Western Ecological “must make available to the Forest Service any 

information requested by the Forest Service.” Aplt. App. 103. However, it does not 

matter that the Forest Service could possess the documents by requesting them from 

Western Ecological: 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.” 

Forsham, 445 U.S. at 186. 

Rocky Mountain Wild also claims that the Forest Service has “constructive 

control” over the requested materials, citing Burka v. U.S. Department of Health & 

Human Services, 87 F.3d 508 (D.C. Cir. 1996). This argument failed to persuade the 

district court, which applied the factors laid out in Burka to determine that the Forest 

Service did not have constructive control over the requested materials. Rocky 

Mountain Wild, 230 F. Supp. 3d at 1248–52. We do not find it necessary to apply 

the Burka factors to conclude that the Forest Service did not control the documents. 

In Burka, the D.C. Circuit found that data collected by a private contractor 

were “agency records,” despite not having been created by agency employees nor 

located on agency property, because of the “extensive supervision and control 

exercised by the agency over collection and analysis of the data.” 87 F.3d at 515. 

Regardless of whether this “constructive control” theory is consistent with Supreme 

Court precedent, see generally Bloomberg L.P. v. Bd. of Governors of the Fed. 
10 

Reserve Sys., 649 F. Supp. 2d 262, 275 (S.D.N.Y. 2009), aff’d, 601 F.3d 143 (2d Cir. 

2010), Burka is distinguishable because there, the agency planned to take physical 

possession of the data in the near future, 87 F.3d at 515. And in Burka, the 

government did not appear to contest the requesting party’s claim that the agency 

exercised constructive control over the data. 87 F.3d at 515 n.5. Here, there is no 

suggestion that the Forest Service ever plans to exercise its right to obtain the 

contractor documents, and it emphatically contests the constructive control issue. 

Because the Forest Service never possessed the contractor documents, it could 

not have controlled them at the time of the FOIA request. The Forest Service has 

therefore met its burden of demonstrating that the requested materials do not satisfy 

the second part of Tax Analysts’ definition of “agency records.” 

C. Whether the Requested Materials Are Agency Records by Contract 

Rocky Mountain Wild makes two additional arguments for why the requested 

materials are “agency records”: (1) the materials are Forest Service property and (2) 

Western Ecological contractually maintains the materials. The first of these is based 

on the employment agreement between LMJV and Western Ecological, which 

provides that Western Ecological’s work product “will be considered Forest Service 

work product belonging to the Forest Service.”2

 Aplt. App. 101. Rocky Mountain 

Wild argues that an agency’s contractual ownership of documents renders them 

 2

 The MOU between the Forest Service and LMJV similarly provides, “All 

work product created pursuant to this Agreement, including but not limited to, all 

data and analyses, shall be the property of the Forest Service.” Aplt. App. 154. But 

the MOU also provides that it is nonbinding and “creates no right, benefit, or trust 

responsibility, substantive or procedural, enforceable at law or equity.” Id. at 155. 
11 

“agency records,” citing Gilmore v. U.S. Department of Energy, 4 F. Supp. 2d 912 

(N.D. Cal. 1998). 

The Gilmore court based its contractual ownership rule, in part, on the premise 

that “as a policy matter, the government should not be able to avoid all of its FOIA 

obligations merely by storing its records offsite.” 4 F. Supp. 2d at 923 n.5. This 

concern was alleviated by the 2007 amendments to FOIA, which incorporated 

information maintained through a records management contract into the definition of 

“record.” See OPEN Government Act of 2007, Pub. L. No. 110-175, § 9, 121 Stat. 

2524, 2528–29. Additionally, the Gilmore court cited Forsham for the proposition 

that “[r]ecords of a nonagency can become agency records by contract.” Gilmore, 4 

F. Supp. 2d at 917. But in Forsham, whether the agency owned the requested 

documents did not “resolve with mathematical precision” the agency records issue. 

445 U.S. at 181. Moreover, Forsham held that nonownership suggests that a 

document is not an agency record. Id. at 180–81. It is an inverse error to infer from 

this that ownership necessarily means that a document is an agency record. 

Consequently, we are not persuaded by Gilmore’s reasoning. 

By contrast, the D.C. Circuit has held that ownership is not equivalent to 

control and has declined to conclude that documents are “agency records” simply 

because an agency has property interests in them. See Judicial Watch, Inc. v. Fed. 

Hous. Fin. Agency, 646 F.3d 924, 927 (D.C. Cir. 2011). We agree 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, 
12 

which does not create a duty to obtain information.” Rocky Mountain Wild, 230 F. 

Supp. 3d at 1251. 

Rocky Mountain Wild also argues that the requested materials are “agency 

records” under 5 U.S.C. § 552(f)(2)(B) because they are contractually maintained by 

Western Ecological. Provisions of the employment agreement between LMJV and 

Western Ecological require Western Ecological to document all of its work relating 

to the preparation of the EIS and to maintain and index those documents “in a system 

pursuant to Forest Service direction.” Aplt. App. 102. Rocky Mountain Wild 

contends that these provisions render Western Ecological’s documents “agency 

records” under § 552(f)(2)(B), which defines “record” as any information that would 

be an agency record when maintained by an agency “that is maintained for an agency 

by an entity under Government contract, for the purposes of records management” 

(emphasis added). 

This is an overexpansive reading of § 552(f)(2)(B). See Am. Small Bus. 

League v. U.S. Small Bus. Admin., 623 F.3d 1052, 1053–54 (9th Cir. 2010). As the 

court stated in Ryan v. FBI, 113 F. Supp. 3d 356 (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.” 

113 F. Supp. 3d at 363. Western Ecological was not hired to manage the Forest 

Service’s records; it was hired to prepare an EIS. The provisions in the employment 

agreement between LMJV and Western Ecological (assuming it can be considered a 
13 

“government contract”) amount to little more than an agreement that Western 

Ecological would document its work in an orderly way. 

Furthermore, the legislative history of the OPEN Government Act, which 

added § 552(f)(2)(B) to FOIA in 2007, supports the conclusion that § 552(f)(2)(B) 

was not intended to encompass these types of records. See S. Rep. No. 110-59, at 7 

(2007) (“This section clarifies that agency records kept by private contractors 

licensed by the government to undertake recordkeeping functions remain subject to 

FOIA just as if those records were maintained by the relevant government agency.”); 

id. at 23–24 (noting that the Department of Justice did not object to the addition of 

§ 552(f)(2)(B) “if its intention is solely to clarify that agency-generated records held 

by a Government contractor for records-management purposes are subject to FOIA,” 

but that it “would have very serious concerns” if it “were intended to disturb over 

twenty-five years of settled law by overruling the Forsham and Tax Analysts 

decisions”). Accordingly, we reject Rocky Mountain Wild’s argument that the 

requested materials are “agency records” under § 552(f)(2)(B). 

As the Forest Service did not create, obtain, or control the requested materials, 

we hold that they are not “agency records” subject to FOIA. 

AFFIRMED.