FACT SUMMARY In February 2001, the U.S. Department of Agriculture (USDA) published notice of a proposed rule regulating exposure to Listeria, a dangerous

FACT SUMMARY In February 2001, the U.S. Department of Agriculture (USDA) 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. The USDA later issued an interim final rule that Consumer Federation of America (CFA) regarded as significantly weaker than the originally proposed rule. CFA suspected that the interim final rule was the result of pressure applied by industry representatives during lobbying meetings with agency officials. Seeking to learn whether USDA officials had met exclusively, or nearly exclusively, with industry representatives who favored the weakening of the original proposed rule, CFA filed a Freedom of Information Act (FOIA) request for access to the public calendars of five senior USDA officials and one USDA administrative assistant. When the USDA failed to provide a substantive response within the statutory time period, CFA filed suit in district court to compel production of the calendars. Ultimately the USDA took the position that the calendars were not “agency records” as defined in the FOIA and therefore that CFA had no right to access. The trial court agreed and ruled that the officials’ appointment calendars were not agency records. CFA appealed. SYNOPSIS OF DECISION AND OPINION The D.C. Circuit Court of Appeals ruled in favor of CFA and held that the calendars were agency records under the FOIA and were subject to public access. The court ruled that since the USDA calendars were continually updated, distributed to employees, and used to conduct agency business, the calendars were included under the FOIA. The court pointed out that unlike a personal diary containing an individual’s private reflections on his or her work—but which the individual does not rely upon to perform his or her duties—the USDA calendars were in fact relied upon by both their authors and their authors’ colleagues to facilitate the day-to-day operations of the department’s work. The court also ruled that the administrative assistant’s calendar was not an agency record covered by the FOIA because it was not distributed among senior officials and was more of a personal time schedule. WORDS OF THE COURT: Personal Information and Agency Records “USDA protests that, because the calendars contain personal as well as business entries, they cannot be considered ‘agency records.’ There is no doubt that the presence of such information may be relevant in determining the use of a document. But as we said in [previous cases], the inclusion of personal information does not, by itself, take material outside the ambit of FOIA. Were that not true, an official could avoid disclosure of the only documentation of a meeting held with industry officials during the pendency of a rulemaking—the very information that CFA seeks in this case—simply by adorning the document with personal entries. In [a previous case], we held that [a government official’s] daily agendas were agency records, notwithstanding that the personal information contained in the agendas [was] identical to that found in [his] appointment calendars, which we found to be personal records. The distinguishing factor was that the agendas were distributed to staff for their use in determining [his] availability for meetings.”

1. What did CFA expect to uncover through the use of the FOIA?

2. If government officials know that they will have to reveal their personal calendars, wouldn’t that potentially chill necessary debate within or outside the agency?


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