Judicial Watch, Inc. v. Federal Housing Finance Agency
396 U.S. App. D.C. 200
| D.C. Cir. | 2011Background
- FHFA has been conservator of Fannie Mae and Freddie Mac since 2008.
- Judicial Watch sought FOIA disclosure of records concerning political campaign contributions by Fannie Mae and Freddie Mac.
- FHFA acknowledged receipt of responsive records but stated no employee had read them.
- District court granted summary judgment finding the documents not
- FOIA provides access to agency records only if the agency controls them at the time of the request.
- Court affirmed district court’s judgment that FHFA does not control the documents to make them agency records under FOIA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FHFA controls the records as conservator. | Judicial Watch. | FHFA controls via conservatorship. | No control under Burka factors. |
| Whether ownership of records by FHFA makes them agency records. | Ownership transfers control. | Ownership does not equal control. | Ownership alone not control; records not agency records. |
| Whether use by agency is required to make records FOIA subject. | Public access to potentially informative records. | No use means not agency records. | Use is decisive; no use means not agency records. |
Key Cases Cited
- Burka v. U.S. Dept. of Health & Human Servs., 87 F.3d 508 (D.C.Cir.1996) (four-factor control test for agency records)
- Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136 (Supreme Court, 1980) (private papers not FOIA records absent agency control)
- Tax Analysts, 492 U.S. 136 (Supreme Court, 1989) (records must be created/obtained and controlled by agency)
- Forsham v. Harris, 445 U.S. 169 (Supreme Court, 1980) (documents agency has right to acquire but not yet exercised not FOIA records)
- Consumer Federation of Am. v. Dept. of Agriculture, 455 F.3d 283 (D.C.Cir.2006) (calibrates FOIA obligations where agency has not relied on records)
- Dep't of Air Force v. Rose, 425 U.S. 352 (Supreme Court, 1976) (FOIA aims to open agency action to public)
- U.S. Dept. of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (Supreme Court, 1989) (core purpose of FOIA to shed light on government operations)