Bureau of Nat. Affairs, Inc. v. U.S. Dept. of Justice, s. 83-1138
| Decision Date | 25 September 1984 |
| Docket Number | 83-1685,Nos. 83-1138,s. 83-1138 |
| Citation | 239 U.S.App. D.C. 331,742 F.2d 1484 |
| Parties | , 239 U.S.App.D.C. 331 The BUREAU OF NATIONAL AFFAIRS, INC., Appellant v. UNITED STATES DEPARTMENT OF JUSTICE, et al. ENVIRONMENTAL DEFENSE FUND v. OFFICE OF MANAGEMENT AND BUDGET, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeals from the United States District Court for the District of Columbia (Civil Action Nos. 82-01211 and 82-00360).
Anthony L. Young, Washington, D.C., for appellant Bureau of National Affairs, Inc., in No. 83-1138. William R. Weissman and Jane Seigler, Washington, D.C., also entered appearances for appellant Bureau of National Affairs, Inc.
Mark H. Gallant, Atty., Dept. of Justice, Washington, D.C., with whom J. Paul McGrath, Asst. Atty. Gen., Leonard A. Schaitman, Atty., Dept. of Justice and Stanley S. Harris, U.S. Atty. at the time the brief was filed, Washington, D.C., were on the brief for Office of Management and Budget, appellant in No. 83-1685 and United States Department of Justice, appellees in No. 83-1138.
Barry J. Trilling, Washington, D.C., with whom Bingham Kennedy, Washington, D.C., was on the brief, for appellee, Environmental Defense Fund in No. 83-1685.
Boisfeuillet Jones, Jr. and Carol D. Weisman, Washington, D.C., were on the brief for amicus curiae, Washington Post Company in No. 83-1138 urging reversal.
Jacob C. Landau, Washington, D.C., was on the brief for amici curiae, The Reporters Committee for Freedom of the Press and The Freedom of Information Service Center in No. 83-1138 urging reversal.
Before MIKVA and EDWARDS, Circuit Judges, and BAZELON, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge MIKVA.
In these cases we are asked to decide a novel question concerning the scope of the Freedom of Information Act (FOIA or the Act): whether appointment calendars, phone logs and daily agendas of government officials are "agency records" subject to disclosure under FOIA. We conclude that appointment materials that are created solely for an individual's convenience, that contain a mix of personal and business entries, and that may be disposed of at the individual's discretion are not "agency records" under FOIA. We also hold that non-binding budgetary recommendations submitted by a federal agency to the Office of Management and Budget are protected from disclosure under Exemption 5 of FOIA.
This appeal involves two separate lawsuits brought by organizations that sought disclosure of various government documents under FOIA. Because they raise similar questions concerning the meaning of the term "agency records," the two cases were consolidated for oral argument. One of the cases raises a separate issue concerning the scope of Exemption 5 of FOIA. We briefly review the background of these two lawsuits.
In 1981, the Bureau of National Affairs (BNA) filed a FOIA request with the Department of Justice (DOJ or the Justice Department) for all records of appointments and meetings between William Baxter, then Assistant Attorney General for Antitrust, and all parties outside the Justice Department. DOJ denied BNA's request on the ground that the materials were not "agency records" subject to disclosure under FOIA. Following exhaustion of its administrative remedies, BNA filed suit in the district court to compel disclosure.
Mr. Baxter's appointment materials include two types of documents. The first consists of two sets of desk appointment calendars maintained for Mr. Baxter in 1981 and 1982. One set of calendars was maintained by Mr. Baxter himself; the other was kept by his personal secretary. According to Mr. Baxter, the calendar entries "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." Declaration of William Baxter, BNA Joint Appendix 19. Top level assistants occasionally had access to the calendars so that they would know how to contact Mr. Baxter. The calendars included personal appointments wholly unrelated to the business of the Antitrust Division and did not always reflect changes in appointments or cancellations of meetings.
The other set of documents sought by BNA are the daily agendas which Mr. Baxter's secretary prepared and distributed to top staff within the Antitrust Division so that they would know his schedule on a given day. The staff usually destroyed these agendas at the end of each day, but Mr. Baxter's secretary retained copies for her own files.
In a short two-page decision the district court granted the government's motion for summary judgment and dismissed BNA's complaint on the ground that the requested materials were not "agency records" under 5 U.S.C. Sec. 552(a)(4)(B). The court agreed with DOJ that the calendars and daily agendas are personal papers which "exist essentially only for the convenience of their author." The court found that the documents "were not created at the request of or for the convenience of the agency and [that] they play absolutely no role in the agency's recordkeeping program." BNA appealed this decision.
The Environmental Defense Fund (EDF) requested the Office of Management and Budget (OMB) to disclose several categories of documents relating to the Environmental Protection Agency's (EPA) implementation of federal hazardous waste laws, particularly the 1980 Superfund legislation, 42 U.S.C. Sec. 9601 et seq. (1982). OMB denied the request in part. Following exhaustion of its administrative remedies, EDF filed suit in district court.
Among the records requested by EDF were the appointment calendars and telephone logs of six OMB officials. One of the six officials named by EDF is no longer employed at OMB and the agency is not in possession of any of her appointment calendars or telephone logs. On appeal, EDF has not challenged OMB's "withholding" of any of that official's appointment materials. The other five employees all maintained daily appointment calendars that included both personal and business appointments. The information noted on the calendars Following several meetings, the parties resolved their disagreements concerning most of the documents requested by EDF. In its final order and memorandum opinion, the district court granted OMB's motion for summary judgment in part and denied it in part. The court ordered OMB to release certain documents, including papers relating to EPA's budgetary recommendations for fiscal year 1982. The court rejected OMB's claim that those documents are predecisional materials exempt from disclosure under Exemption 5 of FOIA. 5 U.S.C. Sec. 552(b)(5). In addition to appealing the district court's order regarding the appointment materials, OMB appeals from that part of the district court's summary judgment ordering disclosure of EPA's budget recommendations. OMB claims that the documents are "predecisional" material protected by Exemption 5.
listed, at most, the participants, the location and, sometimes, the general topic of a meeting. One employee disposed of his calendars on a weekly basis. The calendar entries frequently were not edited, updated or corrected to reflect cancellations or other changes in scheduled appointments. In two cases, only the author had access to the calendar; in two other cases, only the author and the author's secretary had access to the calendar; and in the fifth case, immediate staff were permitted to consult the calendar to ascertain the official's availability. None of the employees maintained a phone log, although one of them retained for limited periods of time, yellow telephone message slips. EDF seeks those yellow slips. In an interlocutory order, a different district judge ruled that the appointment calendars and telephone logs are "agency records" and ordered OMB to submit a Vaughn index regarding those documents. See Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). OMB challenges that order on appeal
Both DOJ and OMB claim that appointment materials are not "agency records" within the meaning of section 552(a)(4)(B) of FOIA. The requirement that materials sought by a private party be "agency records" is jurisdictional--only when an agency withholds an agency record does the district court have authority to compel disclosure. Specifically, the Act provides that "[o]n complaint, the district court ... has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." Id. Sec. 552(a)(4)(B). Federal jurisdiction under this provision is therefore premised upon three requirements: a "showing that an agency has (1) 'improperly'; (2) 'withheld'; (3) 'agency records.' " Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 150, 100 S.Ct. 960, 968, 63 L.Ed.2d 267 (1980). Unless the calendars, agendas, and logs sought by BNA and EDF are "agency records" the district court lacks jurisdiction over their claims.
Neither the language of the statute nor the legislative history provides much guidance in fleshing out the meaning of the term "agency records." "As has often been remarked, the Freedom of Information Act, for all its attention to the treatment of 'agency records,' never defines that crucial phrase." McGehee v. Central Intelligence Agency, 697 F.2d 1095, 1106 (D.C.Cir.1983) (footnotes omitted), modified in other respects, 711 F.2d 1076 (1983). Moreover, "the legislative history yields insignificant insight into Congress' conception of the sorts of materials the Act covers." Id. (footnote omitted).
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