Consumer Federation of America v. Dept. of Ag., 05-5360.

Citation455 F.3d 283
Decision Date30 June 2006
Docket NumberNo. 05-5360.,05-5360.
PartiesCONSUMER FEDERATION OF AMERICA, Appellant v. DEPARTMENT OF AGRICULTURE, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Appeal from the United States District Court for the District of Columbia (No. 04cv01788).

Jillian M. Cutler argued the cause for appellant. With her on the briefs was David C. Vladeck.

Mercedeh Momeni, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Kenneth L. Wainstein, U.S. Attorney, and Michael J. Ryan, Assistant U.S. Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

Before: SENTELLE, HENDERSON, and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

Concurring opinion filed by Circuit Judge HENDERSON.

GARLAND, Circuit Judge.

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.

I

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,1 and inconsistent.2 Moreover, hundreds of pages, including entire months, were not produced.3 Because USDA did not cite any FOIA exemptions to justify the redactions, CFA argued that the court should require the agency "`to produce the remainder of the calendars (or provide a satisfactory explanation for its failure to produce them).'" Consumer Fed'n of Am., 383 F.Supp.2d at 2 (quoting Pl.'s Reply Mem. at 6).

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:

In order to better communicate about my availability, to prevent, among other things, double booking of periods of time, my personal calendar was shared with my Secretaries, my Special Assistant, and the FSIS Senior Management Council, which consisted of the other Assistant and Deputy Administrators for FSIS. Calendar entries were distributed to these few individuals and were in no way distributed widely within USDA or FSIS.

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.4 However, the distribution list of Assistant Administrator Derfler, the least senior of the subject USDA officials, was considerably shorter than the others. Derfler, alone among the subject officials, distributed his calendar only to his secretary.5

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.

II

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 must determine whether the defendant agency has "(1) `improperly'; (2) `withheld'; (3) `agency records.'" Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980) (quoting 5 U.S.C. § 552(a)(4)(B)). The only question at issue on this appeal is the validity of the district court's determination that the USDA calendars are not "agency records."

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).6 Under FOIA, "[s]ummary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith." Gallant, 26 F.3d at 171 (internal quotation marks omitted).

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 1490.7 There is no precedent in which we have applied that test to facts directly paralleling those before us. This is due, at least in part, to the technological advances of recent years.

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...

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