The FOIA Project

By Harry Hammitt
Editor/Publisher, Access Reports

While the Freedom of Information Act gives anyone the right to ask for any government information, that right is severely limited by what actually qualifies as an “agency record.”  A recently filed complaint in the U.S. District Court for the District of Columbia, Beveridge & Diamond v. Dept of Health and Human Services, No. 1:13-cv-01379-RLW (D.D.C.), filed September 11, deals with a defining issue under FOIA—what qualifies as an agency record when the agency has neither physical control or custody of the record—that has received relatively little attention in the courts.   Can an agency exercise sufficient control of a record in the possession of a third party—almost invariably a contractor or grantee—so that the agency can be considered to have “constructive” possession and control?  To the extent that there is any case law on the issue of constructive possession, it suggests that the degree of control the agency exercises over the collection or use of such records is crucial to making a determination.
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