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-C V-00127-WJM-CBS)

________________ _________________ Travis E. Stills of Ener gy and Conservation Law (and Matthew Sandler of Rocky Mountain Wild, Denver, Colorado, on the br iefs), Durango, Colorado, for Plaintiff - Appellant. Karl L. Schock, Assistant United States Atto rney (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 Court2 Plaintiff-Appellant Rocky Mountain Wild appeals from the district court’s determination of law that Defendant-Appe llee 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). Th e question on appeal is whether the documents are “agency records” within the meaning of FO IA. We have jurisdiction under 28 U.S.C. § 1291 and affirm because the docum ents were not created, obtained, or controlled by the Forest Service.

Background The underlying dispute ar ises 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 a nd 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 select ed Western Ecological Resource, Inc., to prepare the EIS in accordance with the MOU, and LMJV and Western Ecological entered into an employment agre ement to that effect. Id. at 101. After distributing a draft for public comment, th e 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 excep t for one category: documents in Western Ecological’s (and 13 s ubcontractors’) 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 ob ligation 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 contr actors’ records that it has never seen or relied upon.” Id. at 1246. Specifically, th e district court assumed (for the sake of argument) that the Forest Service created th e records, id. at 1248, and held that “the Forest Service does not ex ercise sufficient ‘cont rol’ to make those records ‘agency records’ for FOIA purposes,” id. at 1252.

Discussion Whether an agency has improperly withhe ld a record from a FOIA request is a question of law that we review de novo. See Trentadue v. Inte grity Comm., 501 F.3d 1215, 1226 (10th Cir. 2007). Here, the Forest Serv ice argues that the contractor documents were not improperl y withheld, because they are not “agency records” subject to FOIA. To be “ag ency records,” (1) “an agency must ‘either create or obtain’ the requested materials” and (2) “t he 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 ag ency to demonstrate that the requested materials are not agency r ecords. 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 te rms, an “agency” “include s any executive department, military department, Government corporati on, Government contro lled corporation, or other establishment in the executive br anch 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 c ontracts 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 Fo rest Service — created the requested materials. For a private or ganization to be considered “federal” for FOIA purposes, there must be “substantial fede ral supervision of the privat e activities” apart from the supervision “necessary to assu re compliance” with agency goals. Forsham, 445 U.S. at 180 n.11. “A critical element in disti nguishing an agency from a contractor is the power of the Federal Government ‘to contro l the detailed physical performance of the contractor.’” United States v. Orleans, 425 U.S. 807, 81 4 (1976) (quoting Logue v. United States, 412 U.S. 521, 528 (1973)). Taking “action to compel compliance with federal standards” or fixing “specific a nd precise conditions to implement federal objectives” is not substantial enough federal supervision fo r a private organization to be considered a federal agency. Id. at 815–16. The Forest Service did not exercise su fficient control over Western Ecological or the subcontractors for the requested materials to have been created by an6 “agency.” The employmen t agreement between LMJV and Western Ecological provided that the EIS would “be prepared under Forest Service supervision,” Aplt. App. 101, but that supervis ion consisted of meeting w ith 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 materi als acquired from outside orga nizations. Tax Analysts, 492 U.S. at 144–45 (“The legislativ e history of the FOIA abound s with . . . references to records acquired by an agency.” (quoting Forsham, 445 U.S. at 184)). Whether materials are “agency records” does not “t urn 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 its elf and were never acquired by the agency, the materials are not “agency records” even if they we re prepared by a contractor acting on the agency’s behalf. See Fors ham, 445 U.S. at 171. Rocky Mountain Wild does not argue that the Forest Service has ever acquired or seen the requested materi als. Instead, it argues that documents relied upon or indirectly considered by an agency are “ag ency records.” Howe ver, “reliance on a document does not make it an agency record if it has not been created or obtained by7 a federal agency.” Forsham, 445 U.S. at 1 77 n.7. Reliance may be relevant “to the question of whether a record in the possessi on of an agency is an ‘agency record,’” id. (emphasis added), but “without first esta blishing 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 re liance irrelevant. Rocky Mountain Wild also argues that the Forest Serv ice “accepted” the records by indirectly relying on them, ci ting Bar MK Ranches v. Yuetter, 994 F.2d 735 (10th Cir. 1993), and Rohr bough v. Harris, 549 F.3d 1313 (10th Cir. 2008). But the cited language from Bar MK Ranches c oncerns the scope of the administrative record — not the definition of “agency record” — for the purposes of challenging agency action under the Admi nistrative 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 ove r a perceived “blind spot” in the Tax Analysts approach: If “created” is construed strictly to mean “created by an agency employee,” then agencies could larg ely avoid FOIA by delegating tasks to outside contractors, reviewing t hose contractors’ work in a manner that avoids actually “obtaining” a ny 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 th rough the APA, rather than FOIA. As the court explained in Bar MK Ranches, under the APA, a district court reviews an agency action ba sed on the full administrative record (not merely on agency records), which “consists of all docum ents and materials dire ctly 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 neve r even seen the requested mate rials, it cannot be fairly said that the Forest Service ever obtained them. Accordi ngly, the Forest Service has met its burden of showing that the contract or documents do not sa tisfy 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 th e materials at the time of the FOIA request. See Tax Analysts, 492 U.S. at 145. “By control we mean that th e materials have come into the agency’s possession in the legitimate conduct of it s official duties.” Id. (emphasis added). Rocky Mountain Wild c oncedes that the Forest Service does not possess the contractor documents but nevert heless argues that th e terms of the MOU and employment agreement grant the Fore st 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 di strict 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 agr eement between LMJV and Western Ecological contains a provision that in the event of a le gal challenge to the Wolf Creek Project, Western Ecologi cal “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 Se rvice could possess the documen ts by requesting them from Western Ecological: a federal right of acce ss does not render a private organization’s data “agency records” subject to FOIA, b ecause “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, citin g 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 dete rmine that the Forest Service did not have constr uctive control over the reque sted 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 Fo rest Service did not control the documents. In Burka, the D.C. Circu it found that data collected by a private contractor were “agency records,” despite not havi ng been created by agency employees nor located on agency property , because of the “extensiv e supervision and control exercised by the agency over co llection and analysis of the data.” 87 F.3d at 515. Regardless of whether this “constructive c ontrol” theory is cons istent 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, 60 1 F.3d 143 (2d Cir. 2010), Burka is distinguishable because ther e, the agency planne d to take physical possession of the data in the near futu re, 87 F.3d at 515. And in Burka, the government did not appear to contest the requesting party’s clai m that the agency exercised constructive control over the data . 87 F.3d at 515 n.5. Here, there is no suggestion that the Forest Se rvice ever plans to exerci se its right to obtain the contractor documents, and it emphatically contests the c onstructive control issue. Because the Forest Service never possessed the contra ctor documents, it could not have controlled them at the time of th e FOIA request. The Forest Service has therefore met its burden of de monstrating that the request ed 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 additio nal arguments for why the requested materials are “agency records” : (1) the materials are Fore st 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 contractua l ownership of documents renders them

2 The MOU between the Forest Service and LMJV similarly provides, “All work product created pursuant to this Agre ement, including but not limited to, all data and analyses, shall be th e property of the Forest Servi ce.” Aplt. App. 154. But the MOU also provides that it is nonbindin g and “creates no right, benefit, or trust responsibility, substantive or procedural, enfo rceable 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 shoul d not be able to avoid all of its FOIA obligations merely by storing its records of fsite.” 4 F. Supp. 2d at 923 n.5. This concern was alleviated by the 2007 ame ndments to FOIA, which incorporated information maintained throu gh a records management contr act into the definition of “record.” See OPEN Government Act of 200 7, Pub. L. No. 110- 175, § 9, 121 Stat. 2524, 2528–29. Additionally, the Gilmor e court cited Forsha m for the proposition that “[r]ecords of a nonagency can become ag ency records by contract.” Gilmore, 4 F. Supp. 2d at 917. But in Forsham, whether the agency owned the requested documents did not “resolve wi th mathematical precision” the agency records issue. 445 U.S. at 181. Moreover, Forsham he ld that nonownership suggests that a document is not an agency record. Id. at 180 –81. It is an inve rse error to infer from this that ownership necessarily means th at a document is an agency record. Consequently, we are not pers uaded 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 Judi cial 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 in formation.” 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) becaus e they are contract ually maintained by Western Ecological. Provisi ons of the employment agreement between LMJV and Western Ecological require We stern Ecological to document all of its work relating to the preparation of the EIS and to mainta in and index those documents “in a system pursuant to Forest Service direction.” Aplt. App. 102. Rocky Mountain Wild contends that these provisions render We stern Ecological’s documents “agency records” under § 552(f)(2)(B), which define s “record” as any information that would be an agency record when maintained by an agency “tha t 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 th e possession of third party contractors.” 113 F. Supp. 3d at 363. Western Ecologi cal was not hired to manage the Forest Service’s records; it was hire d to prepare an EIS. The provisions in the employment agreement between LMJV and Western Ecol ogical (assuming it can be considered a13 “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, sup ports the conclusion that § 552(f)(2)(B) was not intended to encompass these types of records. See S. Re p. No. 110-59, at 7 (2007) (“This section clarifies that ag ency records kept by private contractors licensed by the government to undertake reco rdkeeping functions remain subject to FOIA just as if those reco rds were maintained by the re levant 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 ag ency-generated records held by a Government contractor for records-ma nagement purposes are subject to FOIA,” but that it “would have very serious concer ns” if it “were intended to disturb over twenty-five years of settled law by ove rruling the Forsham and Tax Analysts decisions”). Accordingly, we reject Ro cky Mountain Wild’s argument that the requested materials are “agenc y records” under § 552(f)(2)(B). As the Forest Service did not create, obtai n, or control the requested materials, we hold that they are not “agen cy records” subject to FOIA.
AFFIRMED.