Opinion for the Court filed by Circuit Judge GRIFFITH.
The Federal Housing Finance Agency (FHFA) has been the conservator of Fannie Mae and Freddie Mac since 2008. Judicial Watch filed a request under the Freedom of Information Act (FOIA) asking the FHFA to disclose records of Fannie and Freddie that show how much money they gave to political campaigns. But it is uncontested that no one at the FHFA has ever read or relied upon any such documents. The district court held that the documents are not agency records subject to FOIA, and we agree.
I
The Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac) buy residential mortgages from banks, repackage them for sale as mortgage-backed securities, and guarantee these securities by promising to make investors whole if borrowers default. Cong. Budget Office, Fannie Mae, Freddie Mac, and the Federal Role in the Secondary
National housing prices began a sustained decline in 2006 that by mid-2008 had substantially eroded the value of Fannie- and Freddie-held mortgages. Worried that either or both Fannie and Freddie might become insolvent, Congress passed the Housing and Economic Recovery Act of 2008 (HERA), Pub.L. No. 110-289, 122 Stat. 2654, which created the FHFA and authorized this new agency to place the two companies into conservator-ship under specified circumstances. See 12 U.S.C. § 4511 (creating the FHFA); id. § 4617 (authorizing the FHFA to place either company into conservatorship in various scenarios, including where the firm’s assets are insufficient to meet its obligations and where the firm’s management consents to a conservatorship). On September 7, 2008, with the consent of management at Fannie and Freddie, the FHFA placed both into conservatorship. As conservator, the FHFA has power to exercise “all rights, titles, powers, and privileges of the regulated entity, and of any stockholder, officer, or director of such regulated entity with respect to the regulated entity and the assets of the regulated entity.” Id. § 4617(b)(2)(A)(i).
Judicial Watch asked the FHFA to disclose “[a]ny and all Freddie Mac ... or Fannie Mae records concerning political campaign contributions,” Letter from Judicial Watch to FHFA (May 29, 2009), and it sued when the agency refused. FOIA gives federal courts jurisdiction “to order the production of any agency records improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). But under FOIA, a federal court may only order an agency to release “agency records.”
Id.; see U.S. Dep’t of Justice v. Tax Analysts,
In its motion for summary judgment, the FHFA acknowledged that it had access to responsive documents, but, in an accompanying affidavit, swore that no one at the agency had ever read them. Decl. of David A. Felt, Deputy Gen. Counsel, FHFA 3. The FHFA argued that until someone at the agency uses the requested documents, they cannot be “agency records” for purposes of FOIA. The district court agreed and granted summary judgment for the agency.
Judicial Watch, Inc. v. Fed. Hous. Fin. Agency,
II
The Supreme Court has held that FOIA reaches only records the agency controls at the time of the request.
Tax Analysts,
(1) the intent of the document’s creator to retain or relinquish control over the records; (2) the ability of the agency to use and dispose of the record as it seesfit; (3) the extent to which agency personnel have read or relied upon the document; and (4) the degree to which the document was integrated into the agency’s record system or files.
Burka v. U.S. Dep’t of Health & Human Servs.,
As a threshold matter, Judicial Watch argues that the FHFA controls the documents because it holds title to them and that we therefore need not consider the
Burka
factors in this case.
See
12 U.S.C. § 4617(b)(2)(A)(1) (providing that as conservator the FHFA assumes “all rights, titles, powers, and privileges” of Fannie and Freddie). But our cases have never suggested that ownership means control. On the contrary, in
Consumer Federation of America v. Department of Agriculture,
we used the
Burka
test to conclude a document was not an “agency record” even though the agency had an arguable property interest in it.
The first
Burka
factor instructs us to consider “the intent of the document’s creator to retain or relinquish control over the records.”
Burka,
The second
Burka
factor also supports Judicial Watch’s claim, as there is no question that as the conservator of Fannie and Freddie, and the titleholder of their documents, the FHFA enjoys “the ability ... to use and dispose of the record[s] as it sees fit.”
Burka,
Although the first two
Burka
factors help Judicial Watch, the third is fatal to its claim.
Burka
instructs us to consider “the extent to which agency personnel have read or relied upon the document,”
id.,
and here it is uncontested that the FHFA has not used the requested records in any way, Deck of David A. Felt, Deputy Gen. Counsel, FHFA 3. The public cannot learn anything about agency decisionmaking from a document the agency neither created nor consulted, and requiring disclosure under these circumstances would do nothing to further FOIA’s purpose of “opening] agency action to the light of public scrutiny.”
Dep’t of Air Force v. Rose,
The fourth
Burka
factor instructs us to consider “the degree to which the document was integrated into the agency’s record system or files.”
Burka,
Although there is no doubt that the FHFA could consult the requested records as it conducts its business, the problem for Judicial Watch is that no one from the FHFA has done so. The Supreme Court held in
Forsham v. Harris
that documents an agency had the right to acquire would not become agency records subject to FOIA “unless and until the right is exercised.”
The FHFA argues in the alternative that even if it “controls” the requested documents, they are not subject to disclosure because it has not “obtained” them.
See Tax Analysts,
Ill
The judgment of the district court is
Affirmed.
