The Freedom of Information Act (“FOIA”) makes “agency records” available to the public upon request, but leaves the term “agency record” undefined. In Forsham v. Harris, 445 U.S. 169 (1980), the Supreme Court ruled that FOIA did not reach documents created and held by government contractors. Later, in U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 144–45 (1989), the Court defined “agency records” as only those a federal agency (1) “create[d] or obtain[ed]” and (2) “control[s]” at the time of a FOIA request.”

The Tenth Circuit recently encountered a FOIA request for documents a contractor had created in preparing an environmental impact statement (“EIS”) but not forwarded to the agency. Rocky Mountain Wild v. U.S. Forest Service, 878 F.3d 1258 (10th Cir. 2018). The District Court had rebuffed the FOIA claim, determining that the U.S. Forest Service (“Forest Service”) did not control the documents at the time of the request. The District Judge had discussed the “created or obtained” element as well, expressing some concern that narrowly interpreting that aspect of the test might undermine FOIA’s efficacy. The District Court observed:

agencies could largely avoid FOIA by delegating tasks to outside contractors, reviewing those contractors’ work in a manner that avoids actually “obtaining” any documents (such as through an on-site visit), and then instructing the contractor only to transmit a particular subset of work product back to the agency.

Rocky Mountain Wild v. U.S. Forest Service, 230 F.Supp.3d 1245 (D. Col. 2017). On appeal, the Tenth Circuit panel found that the Forest Service neither “created or obtained” nor currently “controlled” the relevant documents.

The Decision

Rocky Mountain Wild grew out of a proposed land swap between the Forest Service and the Leavell–McCombs Joint Venture (“LMJV”). The two entities jointly hired Western Ecological Resource, Inc. (“Western Ecological”) to prepare an EIS. Though many documents Western Ecological prepared in connection with the EIS were never transmitted to the Forest Service, the agency had the right to the documents. Both the Forest Service-LMJV memorandum of understanding (“MOU”) and Western Ecological’s employment agreement provided that the company’s work product would be considered that of the Forest Service. The employment agreement also required Western Ecological to provide any information the Forest Service requested if the agency’s National Environmental Policy Act (“NEPA”) compliance were ever challenged. 230 F.Supp.3d at 1246, 1249.

Despite these contractual provisions, the Tenth Circuit found dispositive the fact that Western Ecological had created the documents and never forwarded them to the Forest Service. The panel explained that FOIA does not require government contractors or other private organizations to make documents publicly available, unless there has been ‘substantial federal supervision of the private [organization’s] activities’ beyond that ‘necessary to assure compliance’ with agency goals.” Rocky Mountain Wild, 878 F.3d at 1261. The Forest Service’s supervision of Western Ecological was insufficiently intensive to attribute its creation of records to the agency. The Court explained that the agency’s supervision had been limited to requiring that Western Ecological (1) meet with and brief the Forest Service on various topics and (2) work closely with the Forest Service to complete a list of tasks. Id.

The Tenth Circuit rejected the argument that the agency’s reliance of the Western Ecological documents was tantamount to creating or obtaining the documents. Quoting Forsham v. Harris, the panel explained that “[r]eliance may be relevant ‘to the question of whether a record in the possession of an agency is an “agency record,”’ but ‘without first establishing that the agency has created or obtained the document, reliance or use is … irrelevant.’” Id. at 1262.

Unlike the District Court, the Tenth Circuit was not troubled by the potential for evasion of FOIA obligations. Not only was there no evidence that the Forest Service had engaged in such a ploy, but any such subterfuge could be addressed by the Administrative Procedure Act (“APA”), rather than FOIA. The administrative record subject to review in any APA challenge would have to include all documents on which the agency relied, whether or not the agency had created or obtained them. Id. at 1262.

Nor, in the panel’s view, had the Forest Service ever “controlled” the documents. Rocky Mountain Wild emphasized the Forest Service’s contractual right to obtain the documents. But, the panel explained, “it does not matter that the Forest Service could possess the documents by requesting them from Western Ecological: . . . ‘FOIA applies to records which have been in fact obtained, and not to records which merely could have been obtained.’” Id. at 1263 (quoting Forsham v. Harris, 445 U.S. at 186).

The Critique

The Tenth Circuit’s decision is certainly well supported by precedent. But the specific context before the court, involving a request for materials the EIS an agency must prepare to satisfy the requirements of National Environmental Policy Act of 1969 (“NEPA”), Pub. L. 91-190, (codified as amended at 42 U.S.C. §§ 4321-4347), suggests the need for an exception to the Forsham v. Harris standard. An agency’s responsibility for developing the EIS and seriously considering the environmental impacts laid out therein is a statutorily mandated, not discretionary. 42 U.S.C. § 4332(2)(C). While agencies may, and often do, delegate the task of preparing the EIS, see Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1669, 1780 n.527, (1975), the agency must bear the responsibility for the ultimate work product. Westside Property Owners v. Schlesinger, 415 F. Supp. 1298, 1301 (D. Ariz. 1976); accord Life of the Land v. Brinegar, 485 F.2d 460, 467 (9th Cir. 1973), cert. denied, 416 U.S. 961 (1974)(finding no improper delegation of NEPA responsibilities due to the agency’s the “significant and active participation” in the private contractor’s preparation of the EIS).

NEPA specifies that the EIS, as well as the comments and views of the appropriate federal, state, and local environmental agencies, shall be made available to the public pursuant to FOIA. 42 U.S.C. § 4332(2)(C)(v). The EIS thus serves a dual purpose: it not only informs the agency of environmental concerns to improve internal decision-making, but also helps inform the public of the environmental implications of government actions so that members of the public can make their views known. Weinberger v. Catholic Action of Hawaii, 454 U.S. 139, 143 (1981) (describing FOIA’s twin aims as “inject[ing] environmental considerations into the federal agency’s decisionmaking process,” and “inform[ing] the public that the agency has considered environmental concerns in its decisionmaking process.”). NEPA’s EIS requirement thus serves as a mechanism to ensure the public availability of critical information and thereby facilitate public participation. It is “a springboard for public comment.” Robertson v. Methow Valley Citizen’s Council, 490 U.S. 332, 349 (1989); see 40 C.F.R. § 1506.6 (discussing agency encouragement of public participation in the NEPA process).

But what of the Tenth Circuit’s argument that any EIS-related documents upon which an agency relies must be produced in response to a suit challenging the agency’s action (including presumably NEPA challenges to the sufficiency of the EIS)? True, an agency cannot, by delegating preparation of the EIS, shield documents created by the consultant from inclusion in the administrative record. But litigation is a poor substitute for the far more simple and informal FOIA processes. FOIA is designed to be non-adversarial, at least initially; agencies are required to cooperate with the requester. Indeed, FOIA processes are intended to provide access to information without the need to initiate a lawsuit. In any event, we should not spawn challenges to agency action as a means of obtaining material underlying key aspects of the EIS.

Forsham v. Harris is certainly distinguishable from Rocky Mountain Wild, suggesting that a special rule covering documents prepared by consultants during the NEPA process is compatible with the Supreme Court’s limitation on the scope of agency records. Forsham v. Harris involved studies funded by the National Institute of Arthritis, Metabolism, and Digestive Diseases (“NIAMDD”), a federal agency, pursuant to the Public Health Service Act, 42 U.S.C. § 241(c). 445 U.S. at 172. The studies produced results that prompted the Food and Drug Administration (“FDA”) to take regulatory action. Id. at 174-75. The study was not required by statute; neither the NIAMDD nor the FDA had any obligation to conduct such a study. However, in its regulatory action the FDA relied heavily on the study’s results. Indeed, when opponents of the FDA’s proposed rule questioned the raw data underlying the study, the FDA audited the study by spot-checking the data. Id. at 174. Ultimately, however, the grant recipient was not shouldering a responsibility statutorily imposed upon the agency (like the NEPA-imposed obligation to prepare an EIS). In that context, the Forsham v. Harris Court found that the agency’s mere reliance on the contractor’s data insufficient to qualify the contractor’s work as an “agency record” subject to FOIA. In dissent, Justice Brennan proposed an alternative approach: “a document constitutes an agency record if ‘the agency has treated the record as if it were part of the regulatory process, as if it were in effect a record which exists to serve the regulatory process.’” Forsham v. Harris, 445 U.S. at 189-90.

Caution in crafting an exception to Forsham v. Harris may be warranted. Ordinarily agencies engaged in regulatory action must both establish a basis for their action, which will often rest on key documents, and facilitate public participation. Thus, for example, the D.C., Second, and Eleventh Circuits have read into the APA’s informal rulemaking provisions a requirement that critical data upon which a proposed rule is grounded be published with the notice of proposed rulemaking. See, e.g., U.S. v. Nova Scotia Food Products Corp., 568 F.2d 240 (2d Cir. 1977); Portland Cement Corp. v. Ruckelshaus, 486 F.2d 375, 392-93 (D.C. Cir. 1973, cert. denied, 417 U.S. 921 (1974); accord Jeffrey S. Lubbers, A Federal Guide to Agency Rulemaking 274-75 (5^th ed. 2012). So the obligation to assess certain risks and facilitate public comment on the nature of those risks is not entirely unique to NEPA. (This is not to mention the proliferation of NEPA-like regulatory analysis requirements, some imposed by statute and others imposed by executive order, see ABA Section of Administrative Law and Regulatory Practice, Improving the Administrative Process: A Report to the President-Elect of the United States, 61 Adm. L. Rev. 235, 239-40 (2008).)

Would creating the suggested exception to Forsham v. Harris inevitably lead to enumerable documents created by consultants and never forwarded to the federal government coming within FOIA’s ambit, thus undermining Forsham v. Harris? While there may be a slippery slope problem in defining the scope of an exception, any such slippery slope is probably manageable. Indeed, defining the bounds of any such exception would probably pose no more difficult issues than other judicially-created FOIA doctrines, such as those governing treatment of records agencies prepare for Congressional committees and FOIA’s applicability to records produced by components officers operating within the Executive Office of the President.

Ultimately, documents prepared by private entities as a part of NEPA’s EIS process should be reachable by FOIA.

Bernard W. Bell is a Professor of Law and Herbert Hannoch Scholar at Rutgers Law School.