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Missouri v. Department of the Interior

Citation: 32 ELR 20825
No. No. 01-3002, 297 F.3d 745/(8th Cir., 07/03/2002)

The court upholds the U.S. Fish and Wildlife Service's (FWS') denial of Missouri's Freedom of Information Act (FOIA) request for certain documents produced by a nonprofit corporation involved in the conservation and protection of the Missouri River. The corporation is made up of fish and wildlife conservation agencies of various Missouri River Basin states. Under an agreement between the FWS and the corporation, an FWS employee serves as the corporation's coordinator. Missouri requested certain documents from the corporation concerning its recommendations to the U.S. Army Corps of Engineers regarding changes to the river and its natural habitat, but the corporation denied the state's request. The state filed suit in district court, but the court granted summary judgment in favor of the FWS, finding that the requested records were not agency records and, therefore, were outside the scope of FOIA.

The court holds that because Missouri failed to provide any evidence to establish the requisite nexus between the corporation's records and the FWS' performance of its official agency duties, the district court did not err in concluding that the private organizational records of the corporation were not transformed into federal agency records. Missouri claimed that the agreement between the corporation and the FWS, which guarantees that the records will be maintained at federal expense by a full-time federal employee, created a nexus between the requested records and the agency's work sufficient to transform the corporation's records into agency records for purposes of compelling disclosure under FOIA. The provision of federal funding, however, is insufficient to transform a private organization into a federal agency. Moreover, records that never pass from private to agency control are not agency records, despite the potential access ability. Likewise, the state failed to show that the FWS exercised control of the requested documents. The documents were kept in separate filing systems, the coordinator reports to thecorporation for all substantive employment issues, and no FWS employee other than the coordinator ever worked on or accessed the requested documents.

The full text of this decision is a vailable from ELR (10 pp., ELR Order No. L-547).

Counsel for Appellant
Theodore Kardis
Attorney General's Office
207 W. High St., Jefferson City MO 65101
(573) 751-3321

Counsel for Appellee
Jerry Short
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000