A federal district court judge Thursday denied Judicial Watch access to records of Fannie Mae and Freddie Mac's political contributions. Judicial Watch, a nonprofit group that advocates for government transparency, filed a Freedom of Information Act request for the information in May 2009.
Relying on the belief that the once-private mortgage companies were now public due to the U.S. government taking legal control in July 2008, Judicial Watch filed a records request for all files the two companies had relating to political campaign contributions and internal policies relating to campaign contributions. When the request was denied, Judicial Watch sued.
The district court's decision focused on the question of whether the documents, now under the control of the Federal Housing Finance Agency, are considered "agency documents" under the FOIA definition. District Court Judge Paul Friedman held that while the documents were certainly under the control of the federal agency, the documents themselves are not subject to FOIA because possession of the documents alone does not meet the definition of "agency documents."
Friedman cited a four-part test established by the D.C. Circuit Court in 1996. The four factors are: the intent of the creator to retain or relinquish control of the documents; the ability of the agency to use or dispose of the records; the extent to which the agency has read or relied on the documents; and, the degree to which the document was integrated into the agency's system.
Using that test, the court found that the documents requested failed to meet the third and fourth parts, "the two most important factors." The documents are irrelevant to the government's supervisory role and therefore have not been integrated into the agency's system and have not been relied upon in running the companies, Friedman found.
While the decision is a blow for Judicial Watch and others looking to gain access to the much-maligned Fannie and Freddie, the decision leaves open the possibility of accessing other documents that have been used by the Federal Housing Finance Agency in its role as conservator.