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FOIA Update: OIP Guidance: "Agency Records" vs. "Personal Records"

FOIA Update
Vol. V, No. 4

OIP Guidance

"Agency Records" vs. "Personal Records"

One of the peculiar things about the Freedom of Information Act is that while it plainly applies only to federal "agency records," 5 U.S.C. § 552(a)(4)(B), it nowhere defines that pivotal term. Consequently, both agencies and the courts have upon occasion struggled to determine, as a threshold jurisdictional matter, the FOIA's applicability to various requested materials. Particularly difficult can be the question of whether a requested item may properly be regarded as the "personal record" of an individual agency employee, as opposed to an "agency record" subject to FOIA disclosure. Until recently, there existed surprisingly little FOIA case law addressing this "personal record" issue.

This past summer, however, in a decision of major significance, Bureau of National Affairs, Inc. v. United States Department of Justice, 742 F.2d 1484 (D.C. Cir. 1984), the U.S. Court of Appeals for the D.C. Circuit undertook an extensive analysis of the issue. The two cases consolidated in Bureau of National Affairs ("BNA") involved FOIA requests for various "appointment materials" maintained by certain high-level officials at the Department of Justice and the Office of Management and Budget, The Justice Department documents consisted of "appointment calendars" maintained in duplicate by former Assistant Attorney General for Antitrust William Baxter and his secretary, plus "daily agendas" of Mr. Baxter's activities prepared for distribution to his "top staff." Id. at 1487. The OMB documents consisted of comparable "appointment calendars" maintained by several OMB officials, as well as a group of "yellow telephone message slips" temporarily maintained by one official. Id. at 1487-88. The documents contained references to personal as well as official matters. See id. at 1487, 1495.

"Personal Record" Considerations

In determining the applicability of the FOIA to these documents, the D.C. Circuit emphasized that such determinations should be made upon consideration of "the totality of the circumstances surrounding" each document in question. Id. at 1492. See also id. at 1490, 1494. From the D.C. Circuit's analysis of the particular documents at issue in BNA can be gleaned several different considerations that should be evaluated by agencies in making all "agency record/personal record" determinations. These considerations, which are closely related and in some instances partly overlap, are as follows:

• Creation -- Was the document created by an agency employee on agency time, with agency materials, at agency expense? (if not, then it very likely is not an "agency record," on that basis alone.)

• Content -- Does the document contain "substantive" information? (If not, then it very likely is not an "agency record," on that basis alone.) Does it contain personal as well as official business information?

• Purpose -- Was the document created solely for an individual employee's personal convenience? Alternatively, to what extent was it created to facilitate agency business?

• Distribution -- Was the document distributed to anyone else for any reason, such as for a business purpose? How wide was the circulation?

• Use -- To what extent did the document's author actually use it to conduct agency business? Did others use it?

• Maintenance -- Was the document kept in the author's possession, or was it placed in an official agency file?

• Disposition -- Was the document's author free to dispose of it at his personal discretion? What was the actual disposal practice?

• Control -- Has the agency attempted to exercise "institutional control" over the document through applicable maintenance or disposition regulations? Did it do so by requiring the document to be created in the first place?

• Segregation -- Is there any practical way to segregate out any personal information in the document from official business information?

• Revision -- Was the document revised or updated after the fact for record-keeping purposes?

The Outcome in BNA

Applying these considerations to the specific documents before it in BNA, the D.C. Circuit concluded that most of them were "personal records" not subject to the FOIA. It reached this conclusion, first, for the "telephone message slips" on the grounds that (1) they contained "no substantive information;" (2) they were not used by anyone other than the person called; and (3) "there might be no way for the official to segregate personal from business calls." Id. at 1495. On the other hand, as to Assistant Attorney General Baxter's "daily agendas," it concluded that they were "agency records" because (1) they were "created for the express purpose of facilitating the daily activities of the Antitrust Division;" (2) they were in fact "circulated to the staff for a business purpose;" and (3) although they contained a mix of personal and business references, any "purely personal matters" could readily be segregated and protected as appropriate under the FOIA. Id.

A more difficult question was presented by the "daily appointment calendars" maintained at both agencies. Nevertheless, and despite their similarity to the "daily agendas" ruled subject to the FOIA, the D.C. Circuit held the calendars to be the "personal records" of the officials in question. This conclusion was compelled by the following considerations: (1) the calendars "were created for the personal convenience of [the] individual officials so they could organize both their personal and business appointments;" (2) although there was some access to the calendars "to determine the officials' availability," they "were not distributed to other employees;" and (3) neither agency had exercised any control over the documents, such as by "requir[ing] its employees to maintain such calendars." Id. at 1496.

General Principles

The legal status of such "appointment materials" maintained at other federal agencies, as well as that of other materials possibly qualifying as "personal records" on similar grounds, will depend upon the circumstances surrounding each such item and upon the development of further case law in this area. However, beyond the factual considerations set forth above, some general principles can also be applied. First, it should be clear that private materials not created within a federal agency, but rather merely brought into it by an employee for reference purposes, do not become "agency records" under the FOIA simply by "mere incidence of location." Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 157 (1980). This should be no less so where such an item "relates to" the employee's work, Wolfe v. HHS, 711 F.2d 1077, 1081 (D.C. Cir. 1983), or even where it merely "influences" that work, Illinois Institute for Continuing Legal Education v. United States Department of Labor, 545 F. Supp. 1229, 1234 (N.D. Ill. 1982). But see also 742 F.2d at 1493 (suggesting that as "influence" becomes "reliance" or "use," the matter becomes more in doubt).

On the other hand, the D.C. Circuit in BNA has declared unequivocally that a document created within an agency cannot be regarded as "personal" merely on the ground that its author is free to dispose of it at his personal discretion. See id. at 1493. Likewise, the fact that a document contains personal information "does not, by itself, take [the document] outside the ambit of the FOIA," id. at 1496; but neither does the fact that documents relate entirely to official matters mean that they cannot be regarded as "personal notes," see, e.g., British Airports Authority v. CAB, 531 F. Supp. 408, 415-16 (D.D.C. 1982). Similarly, the D.C. Circuit emphasized in BNA that "[u]se alone . . . is not dispositive." 742 F.2d at 1492. Indeed, the only consideration which might ever be dispositive, in and of itself, would be the assertion of agency control over a document through institutional requirements mandating its creation and/or retention. Cf. id. at 1496 ("Our conclusion might be different if the agencies had exercised any control over the materials . . . ").

Case-by-Case Determinations

In sum, determinations as to whether particular documents can properly be regarded as "personal records" must necessarily be made on a case-by-case basis, according to a careful weighing of all relevant considerations. Where an agency determines that its employee's creation of a document cannot, as the D.C. Circuit phrased it, "be attributed to the agency," id. at 1489, it can properly refuse to treat the document as an "agency record" responsive to a FOIA request. However, as a matter of sound administrative practice, agencies should always identify such "personal records" in response to FOIA requests so that requesters are aware that such determinations have been made.

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Updated August 13, 2014