II. "Control"

As the U.S. Supreme Court has explained, “control” means “the materials have come into the agency's possession in the legitimate conduct of its official duties.”¹⁹ In arguing that the agency also has “control” over the requested records, you should address four points: “(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 sees fit; (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.” ²⁰

Courts evaluate these factors in determining whether an agency “controls” the records, so you should make a strong showing on all four factors.²¹ Courts have emphasized that in the balance of the factors, “use trumps intent” ²² — that is, “the third and fourth factors [are] the most important”²³ — so even where an agency argues that it did not intend to control the records, this can be overcome by a showing that the agency actually used the records.

For example, a court held that the Secret Service “controlled” White House visitor logs, even though the Secret Service showed an intent to relinquish control by entering a Memorandum of Understanding with the White House Office of Records Management that the records were “at all times Presidential Records” and “not the records of an ‘agency’ subject to the Freedom of Information Act.”²⁴

While the agency stated that it intended to transfer the records to the ORM and delete them from their own system, the court did not find this intent “dispositive” in assessing the Service’s actual ability to freely dispose of the records.²⁵ The court reasoned that the Secret Service controlled the records because its personnel “read or relied” on them in performing background checks and verifying visitors.²⁶ Finally, the records resided on the agency’s servers, thereby integrating them into the agency’s record system.²⁷ While the Secret Service argued that the records were not integrated into its operations because they were downloaded onto CDs and transferred to the White House every 30 to 60 days and then purged from its servers, the court stated that “[t]he fact that the records are transferred is not dispositive in determining whether the records are integrated,” and emphasized that all of the records “were at one point an integrated portion of its computer system.”²⁸

Consistent with courts’ emphasis on the agency’s actual use of the records in this four-part analysis, they have held that ownership is not the same as control,²⁹ so it will likely not be enough to merely assert that the agency has control over a record because it owns the record. For example, in one case, a requester unsuccessfully argued that since the Federal Housing Financial Authority held “title” to certain Freddie Mac or Fannie Mae records when the agency became conservator of the companies, the court did not need to consider the four control factors.³⁰ The court rejected this proposition, stating that “our cases have never suggested that ownership means control.”³¹

Looking next to the four factors, the court found that agency personnel never used the records, and stated that “an agency cannot integrate into its record system a document created by a third party that none of its employees have read.”³² Although the companies — the documents’ creators — had “intentionally relinquished control over the records when they agreed to the conservatorship,” and the agency could freely use and dispose of the records, the court found the fact that there had been no actual use of the records to be “fatal” to the requester’s control argument.³³

You should also address each part of this four-part standard where an agency claims materials are not “agency records” because they were under the control of a government contractor at the time of the FOIA request. For example, a court held that records related to an audit conducted by a private contractor were controlled by the agency in light of the fact that whenever the agency instructed the company to produce tables from the data, the company did so.³⁴ Furthermore, the agency had already successfully ordered the company to provide some records to the requester over the company’s objection, and the agency relied on the information in the records to publish an article.³⁵ The court also noted that the agency had determined which statistical analyses the company should perform in conducting the audit by specifying the data fields and statistical tools to be used, and while the company “may have exercised discretion in choosing software and statistical techniques, such actions were merely a means to an end prescribed by” the agency.³⁶

In another case, a court held that an agency controlled data tapes that were created by — and in the physical possession of — a private company where the agency ordered the company to create the tapes and planned to take possession of them at the end of the project.³⁷ The court also noted that the agency intended to later disclose the information in the tapes, prohibited the company from disclosing that information, and wrote articles and developed agency policies using the information.³⁸