Opinion for the Court filed by Circuit Judge GARLAND.
Concurring opinion filed by Circuit Judge HENDERSON.
The question in this case is whether the electronic appointment calendars of six United States Department of Agriculture (USDA) officials are "agency records" within the meaning of the Freedom of Information Act (FOIA), 5 U.S.C. § 552(a)(4)(B). The Consumer Federation of America (CFA) seeks production of the calendars in an effort to discover whether the officials participated in ex parte meetings with industry representatives while a food-safety rulemaking was pending. The district court held that the calendars are not "agency records" and therefore not subject to production under FOIA. We reverse that holding with respect to five of the six calendars.
In February 2001, USDA's Food Safety and Inspection Service (FSIS) published notice of a proposed rule regulating exposure to Listeria, a dangerous, food-borne bacterium that can be found in ready-to-eat meat and poultry. See 66 Fed.Reg. 12,589 (Feb. 27, 2001). In June 2003, FSIS issued an interim final rule, see 68 Fed.Reg. 34,208 (June 6, 2003), that CFA regarded as significantly weaker than the proposed rule. CFA suspected that the interim final rule was the result of "`pressure from industry representatives'" applied during ex parte meetings with agency officials. Consumer Fed'n of Am. v. USDA, 383 F.Supp.2d 1, 2 (D.D.C.2005) (quoting Pl.'s Mot. for Summ. J. at 5).
Seeking to learn whether USDA officials had "`met exclusively, or nearly exclusively, with industry representatives who favor[ed] the weakening of the original proposed rule,'" id. (quoting Pl.'s Mot. for Summ. J. at 5-6), CFA filed a FOIA request for "access to the public calendars" of six senior officials for "all meetings with non-government individuals, businesses, trade associations and/or other organizations and the subject of the meetings." Letter from CFA to USDA at 1 (Aug. 18, 2004). When USDA failed to provide a substantive response within the statutory time period, CFA filed suit in district court to compel production of the calendars.
After CFA's suit and subsequent motion for summary judgment were filed, USDA notified the plaintiff that "FSIS does not maintain a public calendar for any of its personnel," but that each of the six named officials "maintained an electronic calendar on the FSIS computer system." Letter from USDA to CFA at 1 (Feb. 25, 2005). Although USDA asserted that the electronic calendars were "personal records — not Agency records subject to disclosure under the FOIA," id., it stated that the six officials had "independently volunteered to release their personal calendars, with appropriate redactions, for the periods requested." Id. at 2. USDA sent the redacted pages to CFA on February 25, 2005. The redactions were both extensive, blocking out the overwhelming majority of the calendar entries,
USDA cross-moved for summary judgment on March 23, 2005. In support of its motion, the agency filed affidavits from the six officials. The six were: USDA Under Secretary for Food Safety Elsa Murano, Deputy USDA Under Secretary for Food Safety Merle Pierson, FSIS Administrator Garry McKee, Deputy FSIS Administrator Linda Swacina, Acting FSIS Administrator Barbara Masters, and Assistant FSIS Administrator Philip Derfler. The affidavit filed by FSIS Administrator McKee stated:
McKee Aff. ¶ 9. The other five affidavits employed identical language to describe how the officials' calendars were used; the only differences involved which other employees received the calendars. See Murano Aff. ¶ 9; Pierson Aff. ¶ 9; Swacina Aff. ¶ 9; Masters Aff. ¶ 9; Derfler Aff. ¶ 9. Four of those calendars had distribution lists of a length similar to that of Administrator McKee.
On July 28, 2005, the district court issued an opinion concluding that "the officials' appointment calendars maintained on their personal computers are not `agency records' within the meaning of the statute." Consumer Fed'n of Am., 383 F.Supp.2d at 2. It therefore granted USDA's motion for summary judgment and dismissed CFA's complaint. This appeal followed.
FOIA grants the district court "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). Hence, the court
We review the district court's grant of summary judgment on this question de novo. See Students Against Genocide v. Department of State, 257 F.3d 828, 834 (D.C.Cir.2001). "In the FOIA context this requires that we ascertain whether the agency has sustained its burden of demonstrating that the documents requested are not `agency records.'" Gallant v. NLRB, 26 F.3d 168, 171 (D.C.Cir.1994); see United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 n. 3, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989); Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir. 1999).
Although FOIA "limited access to `agency records,' [it] did not provide any definition" of the term. Forsham v. Harris, 445 U.S. 169, 178, 100 S.Ct. 977, 63 L.Ed.2d 293 (1980) (internal citation omitted). We must nonetheless be careful to ensure that "[t]he term `agency records' . . . not be manipulated to avoid the basic structure of the FOIA: records are presumptively disclosable unless the government can show that one of the enumerated exemptions applies." Bureau of Nat'l Affairs, Inc. v. United States Dep't of Justice, 742 F.2d 1484, 1494 (D.C.Cir.1984). As the Supreme Court has repeatedly reminded us, in enacting FOIA, "Congress sought to open agency action to the light of public scrutiny." Tax Analysts, 492 U.S. at 142, 109 S.Ct. 2841 (internal quotation marks omitted); see Department of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 772, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989); Department of Air Force v. Rose, 425 U.S. 352, 372, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976).
Mindful of this caution, our circuit has adopted a totality of the circumstances test to distinguish "agency records" from personal records. The test "focus[es] on a variety of factors surrounding the creation, possession, control, and use of the document by an agency." Bureau of Nat'l Affairs, 742 F.2d at 1490.
Both USDA and CFA agree that the precedent that is most nearly on point is Bureau of National Affairs v. United States Department of Justice, 742 F.2d 1484 (D.C.Cir.1984), a case that concerns paper documents as opposed to electronically stored and retrievable data. In that case, this court considered (inter alia) whether either of two types of documents — daily agendas and desk appointment calendars — used by then-Assistant Attorney General for Antitrust William Baxter constituted "agency records" under FOIA. See id. at 1487, 1494-96. The desk calendars contained entries that "generally reflect[ed] the location of a meeting or appointment, the people expected to be present, and on occasion, the general purpose of the meeting or appointment." Id. at 1487 (internal quotation marks omitted). The daily agendas similarly reflected Baxter's "schedule on a given day." Id. In addition to agency business, both the calendars and the daily agendas listed "personal appointments wholly unrelated to the business of the Antitrust Division." Id. (referring to the desk calendars); see id. at 1496 (referring to both items).
Addressing the factors relevant to the totality of the circumstances test, the court noted a number of characteristics shared by the two types of documents. Both were created by agency employees, and both were located within (and in that sense, were within the possession of) the Justice Department. See id. at 1486, 1492. With respect to control, the court indicated that neither the daily agendas nor the desk calendars were "placed into agency files," id. at 1494, and that the Department required neither their creation nor their retention. See id. at 1494-96.
What ultimately distinguished the two types of documents was how they were "used within the agency." Id. at 1495. "The purpose of the agendas was to inform the staff of Mr. Baxter's availability; they facilitated the day-to-day operations of the Antitrust Division." Id. Consonant with that function, the agendas were "distributed to top staff within the Antitrust Division so that they would know [Baxter's] schedule on a given day." Id. at 1487. This, Bureau of National Affairs held, rendered the daily agendas "agency records." Id. at 1495-96.
In contrast to the agendas, the desk calendars "were retained solely for the convenience of the individual official" in organizing his "personal and business appointments." Id. at 1496. Accordingly, although Baxter's top assistants "occasionally had access to the calendars," id. at 1487, they "were not distributed to other employees." Id. at 1496 (emphasis in original). This, Bureau of National Affairs ruled, rendered the desk calendars personal rather than "agency records." See id.
Bureau of National Affairs provides the template necessary to decide this case and, in so doing, to distinguish between the calendars of five of the USDA officials and that of the sixth — Assistant FSIS Administrator Derfler. We consider the principal factors identified in Bureau of National Affairs — creation, location/possession, control, and use — below. As we explain, use is the decisive factor here.
1. As was true of both the daily agendas and the desk calendars in Bureau
2. In support of the contention that it does not control the requested calendars, USDA declares (without explanation) that neither its own regulations nor the Federal Records Act (FRA), 44 U.S.C. § 2901 et seq., requires its employees to create or retain the subject calendars. CFA disputes (with only slightly more explanation) the latter point, asserting that the calendars are records subject to the FRA and not disposable at an employee's discretion. Determining which position is correct — that is, whether the USDA employees are in fact free to dispose of their calendars — is a complicated endeavor,
Fortunately, we need not decide whether retention of the calendars was wholly within the officials' discretion. Although compelled retention (or creation) might well establish that a document is under USDA control, the absence of such a requirement does not resolve the issue since federal law did not require the preservation (or creation) of the daily agendas in Bureau of National Affairs. See 742 F.2d at 1493-94. Indeed, in that case, we expressly "reject[ed] the government's invitation to hold that the treatment of documents for disposal and retention purposes under the various federal records management statutes determines their status under FOIA." Id. at 1493.
USDA also contends that the officials' calendars are not agency records because they were not "integrated into" the agency's files. Appellee's Br. 9. This point goes both to control and to use (which we discuss next), and was significant in Kissinger v. Reporters Committee. There, the Supreme Court considered whether notes of telephone conversations that Henry Kissinger made while serving as a Presidential Assistant in the Office of the President (an entity not covered by FOIA) became "agency records" when he transferred
Id. at 157, 100 S.Ct. 960 (emphasis added).
It is not at all clear that the USDA calendars never entered the agency's "files" in the sense in which the word was used in Kissinger. USDA cites nothing to support its claim in this regard.
The USDA calendars, by contrast, were not just "stored" in their authors' offices, but were accessed and updated on a daily basis. Indeed, although not dispositive, the technological changes in the period since Assistant Attorney General Baxter kept his appointments in paper calendars are not without significance. The technologically savvy USDA officials kept their calendars "on the FSIS computer system," Letter from USDA to CFA at 1, thus necessarily subjecting them to the control of that system's administrators. At a minimum, this suggests that USDA had more "control" over its officials' calendars than the Justice Department had over Baxter's.
In any event, even if the USDA calendars never entered USDA's files, that would not decide the question before us. In Bureau of National Affairs, the court found that neither the desk calendars nor the daily agendas were "placed into agency files." 742 F.2d at 1494. Nonetheless, the latter were held to be "agency records." See id. at 1495.
3. As in Bureau of National Affairs, with creation, possession, and control not dispositive in determining whether the calendars are "agency records," we must shift our attention to the manner in which the documents were used
First, Baxter's agendas were used to "inform other staff of Mr. Baxter's whereabouts during the course of a business day so that they could determine Mr. Baxter's availability for meetings." 742 F.2d at 1496. Similarly, the USDA officials' affidavits state that their calendars were used to "better communicate about [their] availability, to prevent, among other things, double booking of periods of time." E.g., McKee Aff. ¶ 9. Indeed, some of the redacted calendars submitted for our review contain not only their own subjects' schedules, but also notations regarding the whereabouts of others, such as when colleagues were traveling outside the office.
Second, and consonant with their use in facilitating the scheduling of agency business, Bureau of National Affairs stressed that a distinguishing characteristic of Baxter's agendas was that they were "distributed to other employees," rather than "retained solely for the convenience of the individual officials." 742 F.2d at 1496 (emphasis in original). Employing the same word, the USDA officials declared that their calendars were "distributed" to other agency employees. E.g., McKee Aff. ¶ 9. Moreover, as with Baxter's agendas, which were distributed to "top staff within the Antitrust Division," 742 F.2d at 1487, the calendars of the five senior USDA officials were distributed to top FSIS staff. Administrator McKee's calendar, for example, was distributed to the "Senior Management Council," which consisted of the "Assistant and Deputy Administrators for FSIS," as well as to his special assistant and secretaries. McKee Aff. ¶ 9.
At oral argument, counsel for USDA contended, for the first time, that the affidavits' use of the word "distributed" was misleading because the USDA officials' calendars were not printed and physically distributed to the listed recipients, but instead
Our focus on use helps to ensure that a document subject to disclosure under FOIA is an "`agency record' and not an employee's record that happens to be located physically within an agency." Bureau of Nat'l Affairs, 742 F.2d at 1493 (citing Kissinger, 445 U.S. at 157, 100 S.Ct. 960). Unlike Secretary Kissinger's documents, which were merely "stored in his office" and "not used by the Department for any purpose," 445 U.S. at 157, 100 S.Ct. 960, the USDA calendars were continually updated and used to conduct agency business. And unlike "a personal diary containing an individual's private reflections on his or her work — but which the individual does not rely upon to perform his or her duties," 742 F.2d at 1494, the five USDA calendars were in fact relied upon by both their authors and their authors' colleagues to "facilitate the day-to-day operations of the" FSIS, id. at 1495. Cf. Gallant, 26 F.3d at 171 (holding that letters sought in a FOIA request were personal rather than "agency records" because they were created for a "purely personal objective" and neither the author nor other employees "reli[ed] on the correspondence to carry out the business of the agency").
USDA protests that, because the calendars contain personal as well as business entries, they cannot be considered "agency records." There is no doubt that "the presence of such information may be relevant in determining" the use of a document. Bureau of Nat'l Affairs, 742 F.2d at 1496. But as we said in Bureau of National Affairs, the "inclusion of personal information does not, by itself, take material outside the ambit of FOIA." Id. Were that not true, an official could avoid disclosure of the only documentation of a meeting held with industry officials during the pendency of a rulemaking — the very information that CFA seeks in this case — simply by adorning the document with personal entries. In Bureau of National Affairs, we held that Baxter's daily agendas were "agency records," notwithstanding that the "personal information contained in the agendas [was] identical to that found in Mr. Baxter's appointment calendars," which we found to be personal records. Id. at 1496. The distinguishing factor was that the agendas were "distributed to staff" for their "use in determining Mr. Baxter's availability for meetings," while the calendars
This is not to say, of course, that the officials' personal calendar entries must be produced along with those relating to agency business. To the contrary, both sides agree that the personal entries may be redacted, and we so held in Bureau of National Affairs. See 742 F.2d at 1496 ("The personal information contained in the agendas . . . may be redacted from the copies made available to BNA."). CFA does not seek information about the USDA officials' lunches with friends or trips to the dentist; it simply wants to know "what the government is up to," a goal that is in accord with the "basic policy" of FOIA. Reporters Comm., 489 U.S. at 773, 109 S.Ct. 1468 (internal quotation marks omitted). That documents must be redacted to protect personal information does not contravene the conclusion that they are "agency records."
4. Finally, we address the sixth USDA calendar — that of Assistant Administrator Derfler — which provides a counterpoint to the above analysis. While, like his more senior colleagues, Derfler "distributed" his calendar "to better communicate about [his] availability," he distributed it only to his "secretary and any temporary secretaries that filled in for [his] permanent secretary." Derfler Aff. ¶ 9. This places Derfler's electronic calendar on the same side of the line as Assistant Attorney General Baxter's desk calendars, which were similarly distributed only to his secretary, and which Bureau of National Affairs held were not "agency records."
As the court explained, "use of the documents by employees other than the author is an important consideration" in ensuring that personal papers are not swept "into FOIA's reach." Bureau of Nat'l Affairs, 742 F.2d at 1493. "An inquiry is therefore required into . . . the extent to which the creator of the document and other employees acting within the scope of their employment relied upon the document to carry out the business of the agency." Id. In this case, there is no evidence that "other employees" (apart from his secretary) relied on Derfler's calendar. Rather, like Baxter's calendars, it was "not distributed to other employees." Id. at 1496 (emphasis in original). And just as that fact "distinguish[ed]" Baxter's desk calendars from his daily agendas, id., so, too, it distinguishes Derfler's electronic calendar from those of his superiors.
For the foregoing reasons, we affirm the district court's judgment that the electronic calendar of Assistant Administrator Derfler is not an "agency record." For the same reasons, however, we reverse the court's judgment that the calendars of the other five senior USDA officials are not "agency records."
KAREN LECRAFT HENDERSON, Circuit Judge, concurring.
While I concur in the majority's holding that five of the six calendars are "agency records" and thus subject to disclosure under FOIA and that Derfler's calendar is not, I do so reluctantly because I believe the majority places too much stock in Bureau of National Affairs, Inc. v. United States Department of Justice (BNA), 742 F.2d 1484
The value of BNA as precedent is, I believe, diminished after the United States Supreme Court's decision in United States Department of Justice v. Tax Analysts, 492 U.S. 136, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989). In BNA, the court relied heavily on the authors' purpose in creating the documents. It was primarily for that reason that the court determined that Baxter's daily agendas were "agency records" but his appointment calendars were not. The daily agendas were created "to inform the staff of Mr. Baxter's availability," BNA, 742 F.2d at 1495, whereas the appointment calendars were created for Baxter's "personal convenience," id. at 1496. After BNA, however, the Supreme Court determined that the author's intent is irrelevant to whether a document is an "agency record." In that case, the agency argued that the documents were not prepared to be relied upon in agency decisionmaking and therefore were not "agency records." Rejecting the argument, the Court noted, "This argument, however, makes the determination of `agency records' turn on the intent of the creator of a document relied upon by an agency. Such a mens rea requirement is nowhere to be found in the Act." Tax Analysts, 492 U.S. at 147, 109 S.Ct. 2841. Tax Analysts thus appears to have rejected the rationale used in BNA. In light of Tax Analysts, BNA's utility as a "template," maj. op. at 288, is, to me, questionable.
There is another reason I believe BNA is not the "tight fit" the majority describes. It relies on BNA without thoroughly addressing the difference between the paper documents in BNA and the electronic data here. For instance, the majority assumes without record support that, because the calendars were entered on the agency's computer system, they are "necessarily subject[ed] . . . to the control of that system's administrator" and therefore, presumably, agency records.
The majority does not answer two significant questions, namely how many people must the author "distribute" his calendar to for it to be an agency record and does it make a difference to whom the calendar is distributed? The answer to the first may lie somewhere between one — Derfler distributed his calendar to his secretary — and 11 — McKee distributed his calendar to 11 officials, the fewest recipients of the five officials whose calendars the majority labels "agency records."
Finally, I would suggest precedent other than BNA provides a better guide to decide this case. In Tax Analysts the Supreme Court looked to two factors in deciding whether the documents were agency records: (1) whether the agency created or obtained the document and (2) whether the document was within the agency's control. Id. at 144-46, 109 S.Ct. 2841. Even after Tax Analysts, we have continued to analyze four factors:
United We Stand Am., Inc. v. IRS, 359 F.3d 595, 599(D.C.Cir.2004) (quoting Burka v. U.S. Dep't of Health & Human Servs., 87 F.3d 508, 515 (D.C.Cir.1996) (in turn quoting Tax Analysts v. Dep't of Justice, 845 F.2d 1060, 1069 (D.C.Cir.1988), aff'd on other ground, 492 U.S. 136, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989)) (internal quotation marks omitted)); see Gallant, 26 F.3d at 172. Under this precedent,