III. Personal Records

Where an agency claims that the requested records are personal records of an agency employee, you should attempt to argue that they are agency records based on the way in which they were or are used. Where documents are created by an employee but located in the agency, “use of the document becomes more important in determining the status of the document under FOIA,” and you should argue that it was used by the agency, rather than for a personal purpose.³⁹

The factors you must address in arguing that allegedly personal records are instead agency records are 1) “the purpose for which the document was created,” 2) “the actual use of the document,” and 3) “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.”⁴⁰

In one case, a court applied these factors in finding that five agency officials’ electronic calendars were agency records, but a sixth was not, based on the way in which they were used. The court ruled that five electronic calendars of agency officials were agency records, rather than personal records, because they were “continually updated and used to conduct agency business.”⁴¹ The officials made the calendars available to other agency employees to enable them to determine the officials’ availability, and the officials themselves relied on the calendars to organize their business appointments.⁴² These factors distinguished the calendars from “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 duties.”⁴³ To the extent that the calendars also included personal appointments, the court explained, this did not make the calendars non-agency records; instead, the agency could redact the personal entries.⁴⁴

However, the court ruled that the calendar of an agency assistant administrator was not an agency record because he distributed it only to his secretary and any temporary secretaries to communicate his availability to them.⁴⁵ Other than the secretaries, no agency employees relied on his calendar.⁴⁶

Where you seek materials that the agency claims are personal records of employees, you should explain how they were designed to serve agency-related purposes, are actually used by the employee for such a function, and are disseminated extensively for use by other agency employees.