NEWS MEDIA UPDATE · WASHINGTON, D.C. · Freedom of Information · Aug. 4, 2005
USDA officials’ calendars not public records
Aug. 4, 2005 · The appointment calendars maintained by six U.S. Department of Agriculture officials are not public records and therefore the department does not have to disclose them under the Freedom of Information Act, a federal district court in Washington, D.C., ruled Friday.
Citing declarations of the officials that, among other things, the calendars sought contain a mix of professional and personal appointments and that the agency did not require them to be maintained, District Court Judge Emmet G. Sullivan held that those calendars are not agency records, and therefore do not have to be released.
“I was very surprised at the decision. . . . These were calendars that were kept by government officials, during government time, on appointment books kept in government offices, supplied by the government,” said Carol Tucker Foreman, the director of the Food Policy Institute of the Consumer Federation of America, which sued for access to the calendars. “I find it extraordinary that anybody could argue that those are private documents.”
The federation plans to appeal, Foreman said.
The case stemmed from new rules proposed by USDA’s Food Safety Inspection Service for controlling the spread of the bacterium Listeria, which can contaminate meat and poultry products after processing and cause listeriosis, a serious, though usually not deadly, disease. Suspecting industry pressure had led to weakened final version of the rules, the federation sought the “public calendars” of the inspection service officials who crafted the rules to see if they met “exclusively, or nearly exclusively with industry representatives who favor the weakening” of the rules.
The inspection service originally did not respond to the federation’s August 2004 FOI Act request. The inspection service then told the federation that it kept no public calendars, but six officials had their own electronic calendars. Those calendars were not public records, the inspection service said, but the officials had all agreed to release them after redacting certain information. After reviewing that edited information, the federation deemed it insufficient.
Other federal agencies, including the Food and Drug Administration, publish information on their Web sites about meetings their officials have with people outside the agency, Foreman said. Even other Department of Agriculture agencies provide the calendars if an FOI Act request is filed, she said. Though the federation argued this creates a duty for the inspection service to supply the same information, the court ruled that the FOI Act does not require agencies to keep any specific type of records.
In making its ruling, the court relied heavily on a 1980 federal appeals court case, Bureau of National Affairs v. United States Department of Justice, and its “totality of the circumstances” test. The test requires the examination of “the circumstances surrounding the creation, maintenance and use of the documents within the agency,” including how the document is created and if it is under the agency’s control. In BNA, the Court held that the appointment calendar in question was not a public record.
David Vladeck, the attorney who represented the federation, said the judge’s opinion incorrectly characterized the records as “entirely personal documents, neither accessible to nor used by the staff at the Department of Agriculture.”
“As we read the record in this case, there were a large number of people who had access to and used these calenders,” Vladeck said. “And that takes them out of the status of being private records and puts them in the agency record box.”
As a result, Vladeck said he believes the calendars in this case meet the BNA test for disclosure.
He said he will also argue before the appeals court that the test itself causes confusion by requiring “highly fact-specific determinations” in cases where there is little discovery and the agency has a reason to cast the records in a particular light.
U.S. District Court Judge Richard J. Leon in Washington made a similar ruling one year ago, holding in Bloomberg v. Securities and Exchange Commission that former SEC chairman Harvey Pitts’ calendar was not a public record because it was not widely accessible and it was created for his personal use.
(Consumer Federation of America v. U.S. Dep’t of Agriculture; Requester’s counsel: David Vladeck, Georgetown University Law Center, Washington, D.C.) — TS