D.C. Circuit Considers What Constitutes "Agency Records" for FOIA Purposes

Per Consumer Federation of America v. Department of Agriculture, 455 F.3d 283 (D.C. Cir. June 30, 2006):

[The Freedom of Information Act] 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 (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 [officials' appointment] 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 (1989); Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir.1999). 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 (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. 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.