Written by: Amie Alexander, JD/MPS Candidate, William H. Bowen School of Law

The United States District Court for the District of Columbia sided with defendants on summary judgment on May 25, 2018, determining that certain records were not subject to the Freedom of Information Act (FOIA). The Physicians Committee for Responsible Medicine filed suit against the United States Department of Agriculture (USDA), alleging violation of FOIA when USDA withheld documents relating to the dairy and beef checkoff programs. The National Cattlemen’s Beef Association (NCBA) intervened in the suit. On summary judgment, the Court considered whether documents created by NCBA were subject to FOIA.


A claim involving the dairy checkoff program was resolved prior to this opinion. The remaining question before the Court involved the records of the beef checkoff program. On summary judgment, the plaintiff argued that documents in the possession of USDA qualified as “agency records” and therefore USDA was in violation of FOIA by refusing to search NCBA’s files for responsive records. In response, USDA and NCBA filed cross-motions for summary judgment and argued the records were not agency records.

Plaintiffs in this action requested “copies of records related to the beef checkoff program managed by the Cattlemen’s Beef Promotion and Research Board” between January 1, 1997 and the date of the request, January 25, 2012. These records concerned the relationship between the beef checkoff program, and committees and researchers from the American Academy of Pediatrics. USDA responded to the request on July 20, 2012, stating that no records were located. After administrative appeals yielded no records, plaintiffs filed this suit.

The Court’s Analysis

A district court may enjoin an agency withholding agency records and order the production of those records only if it is shown that the agency has improperly withheld “agency records.” See 5 U.S.C. § 552(a)(4)(B). The court addressed the issue of whether any records maintained by NCBA were “agency records” subject to disclosure under FOIA.

Although FOIA does not provide a definition of agency records,  a two-prong test has been used by the Supreme Court: (1) whether the records were created or obtained by the agency; and (2) the extent to which the agency was in control of the records at the time the FOIA request was made. In these cases, the agency has the burden of establishing the requested materials were not agency records.

Here, under the first prong of the inquiry, the agency did not create the records in question. Rather, these records were created by the NCBA. Thus, the court considered whether the agency subsequently obtained the documents. The plaintiff argued that USDA had obtained the documents because the agency has the authority to audit NCBA’s records; however, the court stressed that the right to acquire was not the same as the act of acquisition. Therefore, USDA did not obtain the records.

Under the second prong, the court additionally found that USDA did not control the records. Control is to be determined using a four part test: “(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 records 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.” The court found no factor weighing in the plaintiff’s favor, and in particular, found the absence of the third factor fatal to the plaintiff’s claim.

Because USDA did not create nor obtain the NCBA beef checkoff records, and was not in control of them when the FOIA request was made, the documents did not qualify as agency records and were not subject to FOIA.