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Government LawyersThe newsletter of the ISBA’s Standing Committee on Government Lawyers

June 2007, vol. 8, no. 4

The Freedom of Information Act and electronic calendars examined in Consumer Federation of America v. Department of Agriculture*

 

In 2001, the United States Department of Agriculture (USDA) published notice of a proposed rule regulating exposure to a dangerous bacterium found in certain meats and poultry called Listeria. In 2003, an interim final rule was issued by the USDA on this subject. The Consumer Federation of America (CFA) was unhappy because the final rule was considerably weaker than the initial proposed rule. 

CFA believed that during ex parte meetings with USDA officials, the industry representatives had pressured the officials to issue the weaker interim final rule. In order to validate their suspicions and determine whether USDA officials had met exclusively with the industry representatives, CFA filed a Federal Freedom of Information Act (FOIA), 5 U.S.C. §552(a)(4)(B), request for access to the electronic calendars of six senior officials including information regarding all meetings with non-government individuals and the subject of those meetings. USDA claimed the electronic calendars were personal records and not “agency records” subject to disclosure under FOIA. Nonetheless, the USDA released the calendars of the six officials, with appropriate redactions, for the period requested. The redactions were extensive and as a result, entire months were not produced. 

The CFA filed suit in district court to compel production of the entire electronic appointment calendars. The district court entered summary judgment in favor of USDA and held that the six electronic calendars at issue were not “agency records” and that none of the calendars were subject to production under FOIA. The United States Court of Appeals for the District of Columbia reversed the district court with respect to five of the six calendars and affirmed the district court with respect to the sixth calendar. The Court of Appeals relied on a 22-year-old case in issuing its decision.

The Supreme Court has repeatedly stated that in enacting FOIA, “Congress sought to open agency action to the light of public scrutiny.” United States Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989). Under FOIA, the district court is granted jurisdiction to “enjoin [an] agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” 5 U.S.C. §552(a)(4)(B). Therefore, the only issue on appeal was the validity of the district court’s finding that the USDA electronic calendars were not “agency records.” 

In reaching its conclusion, the Court of Appeals relied on the factors set out in Bureau of National Affairs v. United States Department of Justice, 742 F.2d 1484 (D.C.Cir. 1984), a case involving paper documents as opposed to electronically stored information. This is compelling for a number of reasons. Both USDA and CFA agreed that Bureau of Nat’l Affairs was the case most nearly on point with the circumstances under review. The technological advancements of recent years have radically changed the capability for storing information as well as the rules of discovery. The issue of production of electronic appointment calendars is extremely important due to the increased use and access of electronic information and materials, especially when those materials are maintained on an agency’s internal computer system. 

In Bureau of Nat’l Affairs, the D.C. Circuit noted that while FOIA does not provide an actual definition of agency records, “records are presumptively disclosable unless the government can show that one of the enumerated exemptions applies.” Bureau of Nat’l Affairs, 742 F.2d at 1494. The court adopted a “totality of the circumstances” test, which was outlined in Bureau of Nat’l Affairs, to distinguish “agency records” from personal records. The test considers several factors involving the creation, possession, control and use of a document by an agency. Id. at 1490. The D.C. Circuit noted that there was no precedent of recent years in which the court had applied this test to facts directly paralleling those in the instant case.

Bureau of Nat’l Affairs involved two types of documents: paper daily agendas and paper desk appointment calendars, both used by Assistant Attorney General William Baxter. In analyzing these documents under the “totality of the circumstances” test, the court in Bureau of Nat’l Affairs found that both documents were created by agency employees and both documents were located within the Justice Department. 

However, the court went on to observe that neither document was placed in agency files and that the Justice Department did not require the creation or the retention of either document. Id. at 1486-1496. Therefore, the distinguishing factor in determining whether these two documents qualified as “agency records” was how they were “used within the agency.” Id. at 1495. This use included the purpose of the documents and who the documents were distributed to within the agency. The court found that because the paper desk calendars were maintained solely for the purpose of the individual official and only his top assistants had occasional access to this document, the paper desk calendar was personal rather than an “agency record.” Id. at 1496-1497. In contrast, Bureau of Nat’l Affairs held that because the daily agendas informed staff of Mr. Baxter’s availability, facilitated day-to-day operations of the division and were distributed to top staff so that they would know Mr. Baxter’s whereabouts on any given day, the daily agendas were in fact “agency records.” Id. at 1495-96. “Where, as here, a document is created by an agency employee, consideration of whether and to what extent that employee used the document to conduct agency business is highly relevant for determining whether that document is an ‘agency record’ within the meaning of FOIA.” Id. at 1490-1491.

The Court of Appeals applied those factors of the “totality of the circumstances” test fromBureau of Nat’l Affairs to the instant case. The court found that much like the daily agendas and desk calendars in Bureau of Nat’l Affairs, the USDA electronic appointment calendars at issue were created by agency employees and located within the agency. However, the court also noted that creation, possession, and control alone cannot determine if a document is an “agency record.” The court used the factual situation from Bureau of Nat’l Affairs and found that while the paper desk appointment calendars from that case were distinguishable, the use characteristics of the paper daily agendas from that case were extremely similar to those found in the electronic appointment calendars of the instant case. 

In CFA v. USDA, there were six USDA officials’ electronic calendars at issue and all six submitted affidavits to describe how and when their electronic appointment calendars were used. This “use” included a distribution list detailing which other employees received the electronic appointment calendars. The main distinction involved the sixth and least senior USDA official, Assistant Food Safety and Inspection Service (FSIS) Administrator Philip Derfler, who distributed his electronic appointment calendar only to his secretary while all other officials involved had a lengthy agency distribution list. 

The Court of Appeals found that the electronic appointment calendars of the five most senior USDA officials were distributed to a specific list of individuals in order to inform staff of their whereabouts and availability. Further, the electronic appointment calendar included information regarding when an individual was traveling or when an official was scheduled to meet with a colleague and/or an agency representative. This was very similar to the information contained in Mr. Baxter’s paper daily agendas in Bureau of Nat’l Affairs as well as the way his agendas were distributed in order to communicate the same characteristics or information to his staff. The paper daily agendas in that case and the electronic appointment calendars of the instant case were not maintained solely for the use of the individual official. The Court of Appeals noted that there did not appear to be any practical distinction between the former practice of distributing information in paper format or in hard copy versus the modern practice of allowing access to electronically stored information through an internal network. The court also found that the five USDA calendars at issue were relied on by both their authors and various colleagues in order to facilitate day-to-day operations of the agency. 

The Court of Appeals made a clear distinction between the distribution of Assistant FSIS Administrator Derfler’s calendar versus the distribution and use of the calendars of the five more senior USDA officials. Derfler’s electronic calendar was distributed only to his secretary and any temporary secretaries that might fill in for his permanent secretary. Derfler’s calendar was not made available or distributed to any of his colleagues for the purpose of communicating his availability or whereabouts. The court likened this practice to the use of Mr. Baxter’s paper desk appointment calendars in Bureau of Nat’l Affairs. The court noted that the use of documents by employees other than the actual author of the document is an important characteristic in determining whether that document is an “agency record.” Therefore, the court affirmed the district court’s decision that Derfler’s electronic appointment calendar was not an “agency record” under FOIA. However, the court reversed the district court’s ruling that the electronic appointment calendars of the other five more senior USDA officials were not “agency records.” 
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*Consumer Federation of America v. Department of Agriculture, No. 05-5360 (D.C. Cir. 2006).


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