316 F. Supp. 3d 1
D.C. Cir.2018Background
- Plaintiff sought NCBA (National Cattlemen’s Beef Association) "beef checkoff" records under FOIA from USDA/AMS/Beef Board.
- NCBA created and retained the records; NCBA's Operating Agreement preserves NCBA ownership and control over those records.
- USDA/AMS/Beef Board have a contractual right to audit some NCBA records but have never requested, received, possessed, or relied on the specific records at issue.
- The parties cross-moved for summary judgment; the core question was whether NCBA records qualify as "agency records" under FOIA.
- The court applied the two-prong Tax Analysts test (creation/obtaining and agency control) and the D.C. Circuit’s Burka factors for control.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NCBA records are "agency records" under FOIA | USDA has "obtained" them because it has unfettered audit access under contract/regulations | NCBA/USDA did not create, obtain, or control the records; audit rights unexercised do not make them agency records | Not agency records; FOIA does not apply |
| Whether USDA "obtained" the records (Tax Analysts prong 1) | Right of access/audit equals obtaining | Right to obtain is insufficient unless exercised; no possession or custody existed | USDA did not obtain the records |
| Whether USDA controlled the records at request time (Tax Analysts prong 2 / Burka) | Audit authority implies control | NCBA intended to retain control; USDA never used, read, integrated, or disposed of the records | USDA did not control the records |
| Whether court can compel USDA to exercise audit rights to create agency records | Implicitly urged by plaintiff to make records obtainable | Compelling exercise would effectively force creation of agency records and exceed FOIA scope | Court declined to compel; such compulsion contrary to FOIA precedent |
Key Cases Cited
- Forsham v. Harris, 445 U.S. 169 (1979) (agency’s mere right to obtain records does not make them agency records unless right is exercised)
- DOJ v. Tax Analysts, 492 U.S. 136 (1989) (two-prong test: records must be created/obtained by agency and under agency control)
- Burka v. U.S. Dep’t of Health & Human Servs., 87 F.3d 508 (D.C. Cir. 1996) (four-factor test for agency control)
- Wolfe v. Dep’t of Health & Human Servs., 711 F.2d 1077 (D.C. Cir. 1983) (possession/custody nexus required to show agency obtained documents)
- Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980) (physical location alone does not create agency records)
- Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208 (D.C. Cir. 2013) (agency use is decisive factor; skepticism about Burka’s determinacy)
- Judicial Watch, Inc. v. Fed. Hous. Fin. Agency, 646 F.3d 924 (D.C. Cir. 2011) (unexercised right to use/dispose of records does not subject them to FOIA)
- Consumer Fed. of Am. v. Dep’t of Agric., 455 F.3d 283 (D.C. Cir. 2006) (Burka factors applied as a totality of circumstances)
Conclusion: Because USDA/AMS/Beef Board neither created nor obtained the NCBA records, and did not control or use them at the time of the FOIA request, the records are not "agency records" subject to FOIA; the court granted summary judgment to USDA and NCBA and denied plaintiff's motion.