One defining element of access laws is an agency must have real or constructive possession of records before they can be deemed subject to the statute. The terms used in the federal Freedom of Information Act (FOIA) are "custody and control." The U.S. Supreme Court has ruled that this means an agency must have actual custody of the records or must exercise ultimate authority over their disposition.

In two FOIA disputes decided the same day in 1980, the court set out the guidance that has been followed ever since. In Forsham vs. Harris, a medical group disagreed with the findings of a study conducted at the University of Pittsburgh under a grant from the National Institutes of Health (NIH). The group requested the raw data upon which the study's conclusions were based. Under the terms of the grant, NIH had a right of possession to the data, but had never exercised that right and apparently had no intention of doing so. The court ruled that the data was not an agency record because "an agency must first either create or obtain a record as a prerequisite to it becoming an 'agency record' within the meaning of the FOIA."

The second case has a more interesting set of facts -- a point which has become increasingly important, since the decision in the case may be limited by its unique circumstances. It dealt with a request from the Reporters Committee for Freedom of the Press for access to Henry Kissinger's papers generated while he was national security advisor in the Nixon administration. When Kissinger became secretary of state, he took these papers with him to that agency. He then negotiated a deal with the Library of Congress to donate the records, with specific restrictions on when they would be made public. By the time this disposition was discovered by the press, the records had already been sent to the library. Essentially, the request instructed the State Department to negate Kissinger's arrangement with the library, retrieve the documents and process them under FOIA. The Supreme Court rejected that argument, finding that Kissinger's records as national security advisor were not subject to FOIA because the office of the president is not an agency for FOIA purposes, and since the State Department never exercised any authority over the records, it had no obligation to retrieve them, even if the records had been improperly removed in the first place. The court pointed out that "the papers were not in the control of the State Department at any time. They were not generated in the State Department. They never entered the State Department's files, and they were not used by the department for any purpose."

These principles were modified slightly in 1989, when the court noted that records became the property of an agency whenever they came into the possession of that agency during the regular course of business.

Electronic Issues In A Paper World

All three Supreme Court cases addressed paper records. But electronic formats are beginning to play havoc with legislative terms designed to resolve issues in a paper world. Possession becomes a considerably stickier question when records are networked or at least subject to use without physical possession.

Two recent cases have challenged what many assumed were the bedrock principles of custody and control established in the Forsham and Kissinger cases. And, not surprisingly, they both deal with electronic records, although not in a particularly cutting-edge fashion.

The first, Burka vs. Dept. of Health and Human Services, 87 F.3d 508 (D.C. Cir. 1996), dealt with access to a database of responses to a questionnaire on teen smoking. The database had been created by a contractor working for the National Cancer Institute (NCI), and the contractor had physical possession of the database at all times. But the U.S. Court of Appeals for

Harry Hammitt  |  Contributing Writer