Consum Fed Amer v. AGRI

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 25, 2006 Decided June 30, 2006

No. 05-5360

CONSUMER FEDERATION OF AMERICA,
APPELLANT

v.

DEPARTMENT OF AGRICULTURE,
APPELLEE

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.
 2

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, No.
04-1788, Mem. Op. at 2 (D.D.C. July 28, 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
 3

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

1
For example, selections provided in the parties’ Joint Appendix
show that 82 of 86 entries were redacted from USDA Under Secretary
Elsa Murano’s March 2003 calendar. See J.A. 73-80, 82-89.
2
For example, while the October 31, 2002 calendars for Under
Secretary Murano and Administrator Garry McKee disclose an 8:00
a.m. meeting with Deputy Under Secretary Merle Pierson and a
representative of Tyson Foods regarding Listeria, the 8:00 a.m. entry
on Pierson’s calendar for the same date is redacted. See J.A. 55-57.
3
See Waldrop Decl., Ex. A (Apr. 25, 2005) (summarizing missing
calendar dates).
 4

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., Mem. Op.
at 3 (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

4
Under Secretary Murano distributed her calendar to “Terri
Nintemann, Deputy Assistant Administrator for the Office of Public
 5

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., Mem. Op. at
1-2. 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

Affairs, Education, and Outreach, FSIS; Dani Schor, Chief of Staff,
FSIS; and the Office of the Administrator, FSIS.” Murano Aff. ¶ 9.
Deputy Under Secretary Pierson shared her calendar with a
“Confidential Assistant, [an] Executive Assistant, . . . Special
Assistants[,]” “and certain FSIS personnel such as a Deputy Assistant
Administrator, Chief of Staff, and the Office of the Administrator.”
Pierson Aff. ¶¶ 8, 9. Deputy Administrator Swacina distributed her
calendar to her “secretaries, the Assistant Administrators, FSIS, and
the Under Secretary for Food Safety.” Swacina Aff. ¶ 9. Acting
Administrator Masters distributed her calendar to her “Chief of Staff,
. . . Special Assistant, . . . Secretaries[,]” “and the FSIS Senior
Management Council, which consisted of the Assistant and Deputy
Administrators for FSIS.” Masters Aff. ¶¶ 8, 9.
5
Derfler declared that his calendar was shared only with “my
secretary and any temporary secretaries that filled in for my permanent
secretary while she was out of the office.” Derfler Aff. ¶ 9.
 6

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 (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 282, 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 (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 (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

6
Regardless of whether the agency must bear the burden of
demonstrating that any requested document is not an “agency record,”
there is no dispute that it bears that burden where -- as here -- the
documents were “created by an agency employee and located within
the agency.” Gallant, 26 F.3d at 172 (internal quotation marks
omitted).
 7

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 (internal quotation marks
omitted); see Department of Justice v. Reporters Comm. for
Freedom of Press, 489 U.S. 749, 772 (1989); Department of Air
Force v. Rose, 425 U.S. 352, 372 (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.

7
See also Tax Analysts, 492 U.S. at 144-45 (holding that, for
documents to qualify as “agency records,” an agency “must either
create or obtain the requested materials,” and “must be in control of
the requested materials” in the sense that they “have come into the
agency’s possession in the legitimate conduct of its official duties”
(internal quotation marks omitted)); Burka v. United States Dep’t of
Health & Human Servs., 87 F.3d at 508, 515 (D.C. Cir. 1996)
(identifying “four factors relevant to a determination of whether an
agency exercises sufficient control,” to wit: “‘(1) the intent of the
document’s creator to retain or relinquish control over the records; (2)
the ability of the agency to use and dispose of the record as it sees fit;
(3) the extent to which agency personnel have read or relied upon the
document; and (4) the degree to which the document was integrated
into the agency’s record system or files.’” (quoting Tax Analysts v.
United States Dep’t of Justice, 845 F.2d 1060, 1069 (D.C. Cir. 1988),
aff’d, 492 U.S. 136 (1989))).
 8

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 listed “personal
appointments wholly unrelated to the business of the Antitrust
Division.” Id. (referring to the desk calendars); see id. at 1496
(referring to both items).

Addressing the factors relevant to the totality of the
circumstances test, the court noted a number of characteristics
shared by the two types of documents. Both were created by
agency employees, and both were located within (and in that
sense, were within the possession of) the Justice Department.
See id. at 1486, 1492. With respect to control, the court
indicated that neither the daily agendas nor the desk calendars
were “placed into agency files,” id. at 1494, and that the
Department required neither their creation nor their retention.
See id. at 1494-96.

What ultimately distinguished the two types of documents
was how they were “used within the agency.” Id. at 1495. “The
purpose of the agendas was to inform the staff of Mr. Baxter’s
availability; they facilitated the day-to-day operations of the
 9

Antitrust Division.” Id. Consonant with that function, the
agendas were “distributed to top staff within the Antitrust
Division so that they would know [Baxter’s] schedule on a given
day.” Id. at 1487. This, Bureau of National Affairs held,
rendered the daily agendas “agency records.” Id. at 1495-96.

In contrast to the agendas, the desk calendars “were retained
solely for the convenience of the individual official[]” in
organizing his “personal and business appointments.” Id. at
1496. Accordingly, although Baxter’s top assistants
“occasionally had access to the calendars,” id. at 1487, they
“were not distributed to other employees.” Id. at 1496
(emphasis in original). This, Bureau of National Affairs ruled,
rendered the desk calendars personal rather than “agency
records.” See id.

III

Bureau of National Affairs provides the template necessary
to decide this case and, in so doing, to distinguish between the
calendars of five of the USDA officials and that of the sixth --
Assistant FSIS Administrator Derfler. We consider the principal
factors identified in Bureau of National Affairs -- creation,
location/possession, control, and use -- below. As we explain,
use is the decisive factor here.

1. As was true of both the daily agendas and the desk
calendars in Bureau of National Affairs -- and thus insufficient
by itself to distinguish between agency and personal records --
all six USDA calendars were created by agency employees and
were located within the agency (in this case, resident on its
computer system). Like both Baxter’s agendas and his
calendars, the USDA calendars “were generated within the
agenc[y]” and “were prepared on government time, at
government expense and with government materials, including
 10

the . . . appointment calendar[]” software itself. Bureau of Nat’l
Affairs, 742 F.2d at 1494 (internal quotation marks omitted).
“In the context of these cases, . . . the question is whether the
employee’s creation of the documents can be attributed to the
agency for the purposes of FOIA.” Id. at 1495. To answer that
question, we must examine two additional factors: control and
use.

2. In support of the contention that it does not control the
requested calendars, USDA declares (without explanation) that
neither its own regulations nor the Federal Records Act (FRA),
44 U.S.C. § 2901 et seq., requires its employees to create or
retain the subject calendars. CFA disputes (with only slightly
more explanation) the latter point, asserting that the calendars
are records subject to the FRA and not disposable at an
employee’s discretion. Determining which position is correct --
that is, whether the USDA employees are in fact free to dispose
of their calendars -- is a complicated endeavor,8 one that both
parties largely avoid.

Fortunately, we need not decide whether retention of the
calendars was wholly within the officials’ discretion. Although
compelled retention (or creation) might well establish that a
document is under USDA control, the absence of such a
requirement does not resolve the issue since federal law did not

8
In Forsham v. Harris, the Supreme Court explained that, to
constitute “records” under the Records Disposal Act, 44 U.S.C. § 3301
(a term that has the same meaning under the FRA, see 44 U.S.C. §
2901(1)), documents must be “‘made or received by an agency of the
United States Government under Federal law or in connection with the
transaction of public business’” and “‘preserved or appropriate for
preservation by that agency . . . as evidence of the . . . activities of the
Government.’” 445 U.S. 169, 183 & n.14 (1980) (quoting 44 U.S.C.
§ 3301) (emphasis omitted).
 11

require the preservation (or creation) of the daily agendas in
Bureau of National Affairs. See 742 F.2d at 1493-94. Indeed,
in that case, we expressly “reject[ed] the government’s
invitation to hold that the treatment of documents for disposal
and retention purposes under the various federal records
management statutes determines their status under FOIA.” Id.
at 1493.9 Although “[t]hose statutes prescribe how federal
agencies are to create, dispose of, and otherwise manage
documents and other material,” they “cannot be used as the
divining rod for the meaning of ‘agency records’ under FOIA.”
Id.

USDA also contends that the officials’ calendars are not
agency records because they were not “integrated into” the
agency’s files. Appellee’s Br. 9. This point goes both to control
and to use (which we discuss next), and was significant in
Kissinger v. Reporters Committee. There, the Supreme Court
considered whether notes of telephone conversations that Henry
Kissinger made while serving as a Presidential Assistant in the
Office of the President (an entity not covered by FOIA) became
“agency records” when he transferred them to the State
Department (an entity covered by FOIA) upon becoming
Secretary of State. See 445 U.S. at 155-57. The Court held to
the contrary:

The papers were not in the control of the State
Department at any time. They were not generated in
the State Department. They never entered the State
Department’s files, and they were not used by the
Department for any purpose. If mere physical location

9
The referenced statutes were the Federal Records Act, 44 U.S.C.
§ 2901 et seq., the Records Disposal Act, 44 U.S.C. § 3301 et seq.,
and the Presidential Records Act, 44 U.S.C. § 2201 et seq. See
Bureau of Nat’l Affairs, 742 F.2d at 1493.
 12

of papers and materials could confer status as an
‘agency record’ Kissinger’s personal books, speeches,
and all other memorabilia stored in his office would
have been agency records subject to disclosure under
the FOIA.

Id. at 157 (emphasis added).

It is not at all clear that the USDA calendars never entered
the agency’s “files” in the sense in which the word was used in
Kissinger. USDA cites nothing to support its claim in this
regard.10 Although the agency may be referring to technical
“records” designations that it has made under the FRA, see 44
U.S.C. § 2901, designations under that statute, as we have noted,
do not determine a document’s status under FOIA. Nor is there
any indication that the Kissinger Court used the term “files” in
a technical sense. The Court found that Kissinger’s White
House records did not become part of the State Department’s
files simply because they were “stored in his office” at the
Department, a matter of “mere physical location.” 445 U.S. at
157. As we explained in Bureau of National Affairs, Kissinger
held that “the mere physical transfer of [Kissinger’s] documents
to the State department . . . did not by itself render them ‘agency
records.’” 742 F.2d at 1489.

The USDA calendars, by contrast, were not just “stored” in
their authors’ offices, but were accessed and updated on a daily
basis. Indeed, although not dispositive, the technological
changes in the period since Assistant Attorney General Baxter
kept his appointments in paper calendars are not without
significance. The technologically savvy USDA officials kept

10
USDA cites two exhibits to its Motion for Summary Judgment,
but neither addresses the point. See Appellee’s Br. 9 (citing “MSJ
Exhibits 2 and 3”).
 13

their calendars “on the FSIS computer system,” Letter from
USDA to CFA at 1, thus necessarily subjecting them to the
control of that system’s administrators. At a minimum, this
suggests that USDA had more “control” over its officials’
calendars than the Justice Department had over Baxter’s.

In any event, even if the USDA calendars never entered
USDA’s files, that would not decide the question before us. In
Bureau of National Affairs, the court found that neither the desk
calendars nor the daily agendas were “placed into agency files.”
742 F.2d at 1494. Nonetheless, the latter were held to be
“agency records.” See id. at 1495.

3. As in Bureau of National Affairs, with creation,
possession, and control not dispositive in determining whether
the calendars are “agency records,” we must shift our attention
to the manner in which the documents were used11 within the
agency. See 742 F.2d at 1492 (“Where, as here, a document is
created by an agency employee, consideration of whether and to
what extent that employee used the document to conduct agency
business is highly relevant for determining whether that
document is an ‘agency record’ within the meaning of FOIA.”);
see also id. at 1490-91.12 Here, the calendars of the five most

11
We focus on the manner in which the documents were used,
rather than on the subjective “intent of the creator of [the] document,”
because the Supreme Court has rejected reliance upon the latter. Tax
Analysts, 492 U.S. at 147; see id. at 147-48 (stating that a “mens rea
requirement is nowhere to be found in the Act [, and that] discerning
the intent of the drafters of a document may often prove an elusive
endeavor”).
12
As Bureau of National Affairs noted, the case law regarding
“agency records” “cannot be compartmentalized rigidly into either a
‘control’ or a ‘use’ analysis.” 742 F.2d at 1490; see id. (stating that
“‘control’” may have “‘no precise definition and may well change as
 14

senior USDA officials have use characteristics that mirror those
Bureau of National Affairs found critical in determining that
Baxter’s daily agendas were “agency records.”

First, Baxter’s agendas were used to “inform[] other staff of
Mr. Baxter’s whereabouts during the course of a business day so
that they could determine Mr. Baxter’s availability for
meetings.” 742 F.2d at 1496. Similarly, the USDA officials’
affidavits state that their calendars were used to “better
communicate about [their] availability, to prevent, among other
things, double booking of periods of time.” E.g., McKee Aff. ¶
9. Indeed, some of the redacted calendars submitted for our
review contain not only their own subjects’ schedules, but also
notations regarding the whereabouts of others, such as when
colleagues were traveling outside the office.13 And each
indicates when the subject official was scheduled to meet with
his or her colleagues, as well as (where not redacted) with
industry representatives.14

relevant factors assume varying importance from case to case.’”
(quoting Crooker v. United States Parole Comm’n, 730 F.2d 1, 5 (1st
Cir.1984))). At several places in the opinion, the court suggested that
the extent to which an employee uses a document for agency business
is an indicator of the extent of agency control over the document. See
742 F.2d at 1491-93.
13
See, e.g., Pierson Calendar, Oct. 6, 2003 (J.A. 90) (containing
notation: “Elsa Murano Traveling” (capitalization altered)); Murano
Calendar, Mar. 4, 2003 (J.A. 73) (containing notation: “Merle Pierson
Traveling” (capitalization altered)).
14
See, e.g., Murano Calendar, Oct. 31, 2002 (J.A. 55) (indicating
briefing by Tyson Foods representative for Murano, Pierson, and
McKee).
 15

Second, and consonant with their use in facilitating the
scheduling of agency business, Bureau of National Affairs
stressed that a distinguishing characteristic of Baxter’s agendas
was that they were “distributed to other employees,” rather than
“retained solely for the convenience of the individual officials.”
742 F.2d at 1496 (emphasis in original). Employing the same
word, the USDA officials declared that their calendars were
“distributed” to other agency employees. E.g., McKee Aff. ¶ 9.
Moreover, as with Baxter’s agendas, which were distributed to
“top staff within the Antitrust Division,” 742 F.2d at 1487, the
calendars of the five senior USDA officials were distributed to
top FSIS staff. Administrator McKee’s calendar, for example,
was distributed to the “Senior Management Council,” which
consisted of the “Assistant and Deputy Administrators for
FSIS,” as well as to his special assistant and secretaries. McKee
Aff. ¶ 9.15 With the exception of Assistant Administrator
Derfler’s calendar, the calendars of the other officials had
similar distribution lists. See supra notes 4 & 5.

At oral argument, counsel for USDA contended, for the first
time, that the affidavits’ use of the word “distributed” was
misleading because the USDA officials’ calendars were not
printed and physically distributed to the listed recipients, but
instead simply made available on the recipients’ computers. See
Oral Arg. Tape at 12:00. Although this fact does not appear in
the record below, we do not doubt its truthfulness. However,
there does not appear to be any practical difference between the
former practice of distributing information in printed form on
hard copies and the modern practice of allowing others access
through network computers. In any meaningful sense, the
USDA calendars were electronically “distributed” to the listed

15
According to its organization chart, FSIS currently has eight
assistant administrators.
 16

recipients and were used by them to schedule agency meetings
and prevent conflicts.16

Our focus on use helps to ensure that a document subject to
disclosure under FOIA is an “‘agency record’ and not an
employee’s record that happens to be located physically within
an agency.” Bureau of Nat’l Affairs, 742 F.2d at 1493 (citing
Kissinger, 445 U.S. at 157). Unlike Secretary Kissinger’s
documents, which were merely “stored in his office” and “not
used by the Department for any purpose,” 445 U.S. at 157, the
USDA calendars were continually updated and used to conduct
agency business. And 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,”
742 F.2d at 1494, the five USDA calendars were in fact relied
upon by both their authors and their authors’ colleagues to
“facilitate[] the day-to-day operations of the” FSIS, id. at 1495.
Cf. Gallant, 26 F.3d at 171 (holding that letters sought in a
FOIA request were personal rather than “agency records”
because they were created for a “purely personal objective” and

16
Bureau of National Affairs did draw a distinction between the
physical distribution of Baxter’s agendas on the one hand, and the
“occasional[] . . . access” that Baxter’s immediate staff had to his desk
calendars on the other. 742 F.2d at 1487; see id. at 1495-96. That
distinction makes sense: the fact that access to Baxter’s desk
calendars required obtaining entry into Baxter’s or his secretary’s
personal areas (the desks on which the calendars sat), and that such
access was only episodic, reinforced the conclusion that Baxter
retained tight control over the calendars and that their principal use
was personal. Allowing others to have routine computer access to a
calendar, however, is more like distributing hard copies than it is like
permitting occasional glances at a document on a desk. In allowing
computer access, the official surrenders personal control over the
document and indicates that it will be used by others to plan their own
workdays.
 17

neither the author nor other employees “reli[ed] on the
correspondence to carry out the business of the agency”).

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. Bureau of Nat’l Affairs, 742 F.2d at 1496. But as we
said in Bureau of National Affairs, the “inclusion of personal
information does not, by itself, take material outside the ambit
of FOIA.” Id. 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 Bureau of
National Affairs, we held that Baxter’s daily agendas were
“agency records,” notwithstanding that the “personal
information contained in the agendas [was] identical to that
found in Mr. Baxter’s appointment calendars,” which we found
to be personal records. Id. at 1496. The distinguishing factor
was that the agendas were “distributed to staff” for their “use in
determining Mr. Baxter’s availability for meetings,” while the
calendars were “created for the personal convenience of [Baxter]
so that [he] could organize both [his] personal and business
appointments.” Id. The calendars of the five senior USDA
officials are indistinguishable from Baxter’s agendas in that
regard, and, accordingly, USDA has failed to “sustain[] its
burden of demonstrating that the documents requested are not
‘agency records.’” Gallant, 26 F.3d at 171.

This is not to say, of course, that the officials’ personal
calendar entries must be produced along with those relating to
agency business. To the contrary, both sides agree that the
personal entries may be redacted, and we so held in Bureau of
National Affairs. See 742 F.2d at 1496 (“The personal
 18

information contained in the agendas . . . may be redacted from
the copies made available to BNA.”). CFA does not seek
information about the USDA officials’ lunches with friends or
trips to the dentist; it simply wants to know “what the[]
government is up to,” a goal that is in accord with the “basic
policy” of FOIA. Reporters Comm., 489 U.S. at 773 (internal
quotation marks omitted). That documents must be redacted to
protect personal information does not contravene the conclusion
that they are “agency records.”

4. Finally, we address the sixth USDA calendar -- that of
Assistant Administrator Derfler -- which provides a counterpoint
to the above analysis. While, like his more senior colleagues,
Derfler “distributed” his calendar “to better communicate about
[his] availability,” he distributed it only to his “secretary and any
temporary secretaries that filled in for [his] permanent
secretary.” Derfler Aff. ¶ 9. This places Derfler’s electronic
calendar on the same side of the line as Assistant Attorney
General Baxter’s desk calendars, which were similarly
distributed only to his secretary, and which Bureau of National
Affairs held were not “agency records.”

As the court explained, “use of the documents by employees
other than the author is an important consideration” in ensuring
that personal papers are not swept “into FOIA’s reach.” Bureau
of Nat’l Affairs, 742 F.2d at 1493. “An inquiry is therefore
required into . . . the extent to which the creator of the document
and other employees acting within the scope of their
employment relied upon the document to carry out the business
of the agency.” Id. In this case, there is no evidence that “other
employees” (apart from his secretary) relied on Derfler’s
calendar. Rather, like Baxter’s calendars, it was “not distributed
to other employees.” Id. at 1496 (emphasis in original). And
just as that fact “distinguish[ed]” Baxter’s desk calendars from
 19

his daily agendas, id., so, too, it distinguishes Derfler’s
electronic calendar from those of his superiors.

IV

For the foregoing reasons, we affirm the district court’s
judgment that the electronic calendar of Assistant Administrator
Derfler is not an “agency record.” For the same reasons,
however, we reverse the court’s judgment that the calendars of
the other five senior USDA officials are not “agency records.”

So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, concurring:
While I concur in the majority’s holding that five of the six
calendars are “agency records” and thus subject to disclosure
under FOIA and that Derfler’s calendar is not, I do so reluctantly
because I believe the majority places too much stock in Bureau
of National Affairs, Inc. v. United States Department of Justice
(BNA), 742 F.2d 1484 (D.C. Cir. 1984), and leaves some key
questions unanswered.
The value of BNA as precedent is, I believe, diminished
after the United States Supreme Court’s decision in United
States Department of Justice v. Tax Analysts, 492 U.S. 136
(1989). In BNA, the court relied heavily on the authors’ purpose
in creating the documents. It was primarily for that reason that
the court determined that Baxter’s daily agendas were “agency
records” but his appointment calendars were not. The daily
agendas were created “to inform the staff of Mr. Baxter’s
availability,” BNA, 742 F.2d at 1495, whereas the appointment
calendars were created for Baxter’s “personal convenience,” id.
at 1496. After BNA, however, the Supreme Court determined
that the author’s intent is irrelevant to whether a document is an
“agency record.” In that case, the agency argued that the
documents were not prepared to be relied upon in agency
decisionmaking and therefore were not “agency records.”
Rejecting the argument, the Court noted, “This argument,
however, makes the determination of ‘agency records’ turn on
the intent of the creator of a document relied upon by an agency.
Such a mens rea requirement is nowhere to be found in the Act.”
Tax Analysts, 492 U.S. at 147. Tax Analysts thus appears to
have rejected the rationale used in BNA. In light of Tax
Analysts, BNA’s utility as a “template,” maj. op. at 9, is, to me,
questionable.
There is another reason I believe BNA is not the “tight fit”
the majority describes. It relies on BNA without thoroughly
addressing the difference between the paper documents in BNA
 2

and the electronic data here. For instance, the majority assumes
without record support that, because the calendars were entered
on the agency’s computer system, they are “necessarily
subject[ed] . . . to the control of that system’s administrator” and
therefore, presumably, agency records.1 Maj. op. at 13. But
BNA is not authority for the notion that a calendar entered on a
computer belonging to the agency means that the agency has
“control” over it. Cf. Gallant v. NLRB, 26 F.3d 168, 172 (D.C.
Cir. 1994) (“Thus, appellant’s suggested test that employing
agency resources, standing alone, is [sic] sufficient to render a
document an ‘agency record,’ is inconsistent with governing
precedent.”). In any event, the majority retreats from its
“control” discussion in asserting that “even if the USDA
calendars never entered USDA’s files, that would not decide the
question before us.” Id. More important, in the post-BNA age,
virtually every document is entered on a computer system. But
BNA’s emphasis on “distribution” does not transfer all that
easily into the paperless world and that is because “distribution”
does not equate to “access.” The distribution of the daily
agendas in BNA differentiated them from the appointment
calendars which were simply available to certain personnel who

1
The majority’s discussion of control makes a distinction based on
whether the calendars were maintained on the agency’s server or on
the hard drive of the author’s office computer. See maj. op. at 12–13.
It cites to a letter the USDA sent to CFA, in which the USDA
indicated that the authors maintained their calendars “on the FSIS
computer system.” Id. (citing Letter from USDA to CFA at 1).
Nevertheless, each author indicated in his affidavit that his calendar
was maintained “on the computer system in my office.” E.g., McKee
Aff. ¶ 6 (emphasis added). If each calendar was in fact stored “on the
computer system in [the author’s] office,” then control seems to cut
against the finding that the calendar is an agency record, that is, the
author intended to maintain control over it.
 3

could “access” Baxter’s desk and the OMB official’s desk.
Similarly, the personal calendars here were available to certain
personnel who could “access” the six USDA officials’
computers. If, after entering his personal calendar on his
computer, each of the six had clicked “send” to those with
access, that action might more closely equate to electronic
“distribution” and the calendars would then resemble the BNA
daily agendas. If the keystone of an “agency record” is whether
an “employee used the document to conduct agency business,”
see BNA, 742 F.2d at 1493, merely making a document
“available”—as opposed to directing (“distributing”) the
document to others in the agency—does not, it seems to me,
make likely the use of the document to conduct agency business.
The majority does not answer two significant questions,
namely how many people must the author “distribute” his
calendar to for it to be an agency record and does it make a
difference to whom the calendar is distributed? The answer to
the first may lie somewhere between one—Derfler distributed
his calendar to his secretary—and 11—McKee distributed his
calendar to 11 officials, the fewest recipients of the five officials
whose calendars the majority labels “agency records.”2
Moreover, the majority apparently believes that “distribution”
to one’s secretary is different from “distribution” to an equal or
superior but does not explain why. See maj. op. at 18. These
questions warrant further explanation because the majority treats

2
Murrano may have “distributed” her calendar to fewer people
than McKee but her affidavit does not reveal the exact number of
individuals with access. She avers that in addition to her confidential
assistant, executive assistant, and special assistant, Terry Nintemann,
Dani Schor, and the Office of the Administrator received access to her
calendar. Murrano Aff. ¶ 8–9. It is unclear how many people in the
Office of Administrator had access.
 4

them as dispositive. In addition, whether 11 is too many under
BNA is unknown because BNA does not include numbers in its
“top staff” description. BNA, 742 F.2d at 1495. Perhaps BNA
does not quantify “top staff” because it would then have to
decide exactly where a quantitative difference (number of
personnel with access to calendar) becomes a qualitative
difference (“distribution”). Whether this is logically “doable”
seems to have also vexed the majority here.
Finally, I would suggest precedent other than BNA provides
a better guide to decide this case. In Tax Analysts the Supreme
Court looked to two factors in deciding whether the documents
were agency records: (1) whether the agency created or obtained
the document and (2) whether the document was within the
agency’s control. Id. at 144–46. Even after Tax Analysts, we
have continued to analyze four factors:
(1) the intent of the document’s creator to retain or
relinquish control over the records; (2) the ability of
the agency to use and dispose of the record as it sees
fit; (3) the extent to which agency personnel have read
or relied upon the document; and (4) the degree to
which the document was integrated into the agency’s
record system or files.
United We Stand Am., Inc. v. IRS, 359 F.3d 595, 599(D.C. Cir.
2004) (quoting Burka v. U.S. Dep’t of Health & Human Servs.,
87 F.3d 508, 515 (D.C. Cir. 1996) (in turn quoting Tax Analysts
v. Dep’t of Justice, 845 F.2d 1060, 1069 (D.C. Cir. 1988), aff’d
on other ground, 492 U.S. 136 (1989)) (internal quotation marks
omitted)); see Gallant, 26 F.3d at 172. Under this precedent, the
six calendars look, at least to me, less like agency records.