Not an "Agency Record"

The FOIA’s mandatory disclosure requirements apply to “any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.”1

However, as clarified by the U.S. Supreme Court, “agency” does not include “the President's immediate personal staff or units in the Executive Office [of the President] whose sole function is to advise and assist the President.”2

If an agency claims that you have requested materials that are not “agency records,” you must argue that the records fall within the scope of the definition. The FOIA does not specifically define “agency record,” although it defines a “record” as “any information that would be an agency record subject to the requirements of [FOIA] when maintained by an agency in any format, including an electronic format; and any [such] information . . . that is maintained for an agency by an entity under Government contract, for the purposes of records management.”3

However, the U.S. Supreme Court has provided a two-part definition for what constitutes an “agency record” under FOIA.4 To satisfy this definition, an agency must 1) “‘create or obtain’ the requested materials,”5 and 2) “be in control of the requested materials at the time the FOIA request is made.”6 In arguing that a record constitutes an agency record, you must satisfy both parts of this definition.

1 5 U.S.C. § 552(f)(1).

2 Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156 (1980) (quoting H.R. Rep. No. 93-1380, at 15 (1974) (Conf. Rep.)).

3 5 U.S.C. § 552(f)(2).

4 U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 144-45 (1989).

5 Id. at 144 (quoting Forsham v. Harris, 445 U.S. 169, 182 (1980)).

6 Tax Analysts, 492 U.S. at 145.