Since FOIA applies only to agency records, the mere fact that an item is a record does not automatically mean that it can be reached by a FOIA request. There has been an increasing amount of litigation over this issue of whether records are also agency re

Since FOIA applies only to agency records, the mere fact that an item is a record does not automatically mean that it can be reached by a FOIA request. There has been an increasing amount of litigation over this issue of whether records are also agency records. ¶ The leading case on this question is Forsham v. Harris, 445 U.S. 169, 48 U.S.L.W. 4232 (Mar. 3, 1980), in which the Supreme Court held that records which had been generated by private grantees of the (then) Department of Health, Education and Welfare (HEW) working under a grant, and which had always remained in the grantees' possession, were not agency records despite the facts that HEW had a contract right to obtain copies of the records, and that it had used a report (which was an agency record) based on them in an agency deliberative process.