Rocky Mountain Wild, Inc. v. United States Forest Service, 878 F.3d 1258

Rocky Mountain Wild requested records under FOIA related to the Wolf Creek land-exchange EIS prepared for the Forest Service.
The EIS and much of the underlying work were prepared by private contractor Western Ecological (and subcontractors) pursuant to an MOU and employment agreement between the project proponent (LMJV) and Western Ecological; Forest Service oversight was supervisory but not hands-on control.
Rocky Mountain Wild sought documents that Western Ecological and subcontractors possessed but never provided to or seen by the Forest Service.
The district court held the Forest Service had no FOIA duty to disclose contractor-held materials it never created, obtained, or controlled; Rocky Mountain Wild appealed.
The Tenth Circuit reviewed de novo whether the documents qualify as "agency records" under the two-part Tax Analysts test: (1) created or obtained by the agency, and (2) under agency control at time of request.
Court affirmed: contractor documents were not agency records because the Forest Service neither created/obtained them nor controlled them when the FOIA request was made; contractual ownership or maintenance provisions did not change the result.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether documents were "created or obtained" by the agency	Documents were relied on or indirectly considered by the Forest Service, so they should be agency records	Private contractors created the materials; mere supervision or indirect reliance does not make them agency-created or obtained	Not created or obtained by the agency; therefore not agency records
Whether agency had control of documents at FOIA request	Forest Service had contractual rights and "constructive control" via MOU/employment agreement	Agency never possessed or exercised control at request; right to obtain is insufficient	No control at time of request; not agency records
Whether contractual ownership converts contractor records into agency records	Contract provision states contractor work product is Forest Service work product owned by the Forest Service	Ownership alone does not equal control; FOIA applies to records in fact obtained, not merely owned or obtainable	Ownership did not make them agency records
Whether § 552(f)(2)(B) (contractual records maintenance) applies	Contractor maintained documents "pursuant to Forest Service direction," so §552(f)(2)(B) applies	Provision addresses government records-management contracts, not ordinary contractor work-product preparation	§552(f)(2)(B) did not apply; statutory scope doesn't cover these materials

U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136 (defines two-part test for "agency records")
Forsham v. Harris, 445 U.S. 169 (private-party materials are agency records only if agency created/obtained or had sufficient control)
United States v. Orleans, 425 U.S. 807 (distinguishes contractors from federal instrumentalities by government control over detailed performance)
Burka v. U.S. Dep’t of Health & Human Servs., 87 F.3d 508 (D.C. Cir.) (contractor data treated as agency records where agency exercised extensive control)
Bar MK Ranches v. Yuetter, 994 F.2d 735 (10th Cir.) (administrative record scope for APA review includes materials directly or indirectly considered)
Rohrbough v. Harris, 549 F.3d 1313 (10th Cir.) (comment on "acceptance" of materials by agency personnel in administrative-record context)
Judicial Watch, Inc. v. Fed. Hous. Fin. Agency, 646 F.3d 924 (D.C. Cir.) (ownership not equivalent to control for FOIA purposes)