NEWS MEDIA UPDATE · WASHINGTON, D.C. · Freedom of Information · July 7, 2006
Federal agriculture officials must release calendars
July 7, 2006 · Information about who senior U.S. Department of Agriculture officials met with in 2003 to discuss scaling back rules governing testing for deadly bacteria in meat must be released to a consumer advocacy group, a federal appeals court ruled.
The three-judge panel of the U.S. Court of Appeals in Washington, D.C., ruled on June 30 that the calendars of five top USDA officials “were generated within the agency . . . prepared on government time, at government expense and with government materials,” and “were not just ‘stored’ in their authors’ offices, but were accessed and updated on a daily basis.”
Writing for the majority, Judge Merrick B. Garland discussed the calendars’ use in informing agency employees of the officials’ availability by distributing them to staff, and ruled that those factors together showed that the calendars are agency records subject to release.
The appeals court panel reversed a July 2005 ruling from U.S. District Judge Emmet G. Sullivan that the calendars of six officials were not agency records and not subject to release under the Freedom of Information Act. The panel reversed regarding five of the six officials, relying on a 1984 case in its own court which requires an examination of the documents’ creation, location, control and use. The court held that the sixth official’s records did not meet the criteria of the test because as a lower-level official, his calendar was not distributed as widely as the others.
In 2004, the Consumer Federation of America requested copies of appointment calendars from October 2000 to August 2004 of six senior USDA officials, hoping to learn whether they had met with food industry lobbyists who may have opposed previously proposed stricter rules regarding the testing of foods that may contain Listeria, a deadly bacteria. When the USDA did not fully respond to its Freedom of Information Act request, CFA sued in 2005 for access to the calendars.
“The agency did an about-face on the Listeria regulations and the Consumer Federation of America suspected the change was due to ex parte communications with industry representatives from the meat and poultry industries,” said Jillian M. Cutler, an attorney for the CFA. She said the CFA wanted to know who agriculture officials were meeting with to determine whether those individuals may have influenced the adoption of rules that were weaker than originally proposed.
The CFA argued that the schedules should be released as agency records because they were created by agency officials using government resources and distributed to other employees. The USDA countered that the appointment calendars were personal records and not subject to release under FOIA.
Since the CFA’s appeal to the district court ruling, the USDA has joined several other agencies in posting calendars of senior agency officials to their Web sites, Cutler said. She said she has not heard from the USDA whether it will release the calendars or appeal the decision. If the USDA releases the calendars, the court order allows it to redact any personal appointments.
Representatives from the USDA’s press office did not return calls seeking comment.
Studies on Listeria have shown that incidents of food poisoning from the bacteria have increased since 2002, the CFA has reported. Initial rules related to testing meat for the bacteria were more strict than those eventually adopted by the Bush administration in 2003. The CFA reported that food industry groups lobbied the USDA and Bush administration to water down the requirements, which resulted in the lower standards.
Judge Karen LeCraft Henderson concurred with the appeals court ruling in a separate opinion arguing a different standard for determining release of appointment calendars which looked at whether the agency created or obtained the document and whether the document was within the agency’s control.
(Consumer Federation of America v. Dep’t of Agriculture, Requester’s counsel: Jillian M. Cutler, Georgetown University Law Center Institute for Public Representation, Washington, D.C.) — CZ