I. "Create or Obtain"

In arguing that the record is an agency record, you must first explain how the material was either created or obtained by the agency. An agency “obtains” a record if it physically has possession of it.⁷

In arguing that the agency “created” the record, you should focus on “the process by which the records are generated,” rather than who provides “the contents of the records.”⁸ As one court explained, “[t]his distinction is important, because ‘[t]he FOIA deals with documents, not information.’”⁹ For example, one court held that White House visitor logs were created by the Secret Service (a component of the Department of Homeland Security) — even though much of the visitors’ information was provided by Presidential and Vice-Presidential staff members — as the agency “largely generated” the logs themselves.¹⁰ Since Secret Service officials entered visitors’ information into a computer system, processed it to conduct background checks, and used it in verifying visitors when they arrived, the court found that the records were created by the Secret Service, “[r]egardless of what information may be supplied by outside actors.”¹¹ You should likewise argue that the way in which the records are generated within an agency — for example, with the involvement of agency personnel — shows that it is a record created by that agency.

Where an agency claims that the records are records of a private entity, such as a government contractor, you should attempt to argue that they are agency records either because the agency physically possesses them or because the contractor “acted on behalf of” the agency in creating the records.¹² Even where records are “neither created by agency employees” nor “currently located on agency property,” they are still “created” by the agency so long as the contractor “acted on behalf of [the agency] in creating the” records at issue.¹³ In arguing that a contractor acted on the agency’s behalf, you should demonstrate that the agency exercised “extensive supervision and control” over the contractor in its development of the records.¹⁴

For example, a court ruled that records that a company “produced in connection with” its contract with a government agency were generated “on behalf of” the agency, where the agency hired a private company to audit an agency study and reproduce the study results — using specific agency-prescribed methods — for the purpose of validating their accuracy.¹⁵

Similarly, a court held that records in the physical possession of a contractor operating a government-owned animal facility were records created “on behalf” of the agency.¹⁶ The court pointed to the facts that the agency owned the building where the records were housed, the agency required the contractor to maintain the records, the records related to animals owned by the agency, and the files were subject to agency inspection.¹⁷

In contrast, a court held that the Small Business Administration did not have to produce the cell phone records of a former employee from Verizon Wireless, as the agency did not “extensively supervise[]” or become “otherwise significantly entangled with Verizon’s production and management of the records.”¹⁸

When arguing that records in the possession of a government contractor are agency records, you should highlight facts that tend to establish that the contractor generated or maintained the records at issue on behalf of the government. It would also be helpful to provide any examples of agency direction, authority, or supervision in the creation or gathering of the records.