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Rocky Mountain Wild, Inc. v. U.S. Forest Service

ELR Citation: 48 ELR 20006
Nos. 17-1119, (10th Cir., 01/05/2018)

The Tenth Circuit held that the Forest Service does not have to fulfill an environmental group's FOIA request for documents created by a third-party contractor related to a land exchange in Colorado. At the center of the case was an agreement between a developer and the Forest Service to exchange privately owned land for federal land in the Rio Grande National Forest. The developer hired the contractor to prepare an EIS concerning the exchange. After the Forest Service published the final EIS the environmental group filed a FOIA request for documents, including those prepared by the contractor. The Forest Service filed a motion with the court to determine whether it was required to turn over the documents. A district court ruled that the Forest Service had “no duty, under the circumstances, to disclose third-party contractors’ records that it has never seen or relied upon." The appellate court agreed, holding that because the Forest Service never possessed the contractor documents, it could not have controlled them at the time of the FOIA request. As such, they are not agency records subject to FOIA.