Case No. VFA-0361, 27 DOE ¶ 80,106

January 28, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Charles G. Frazier

Date of Filing: December 29, 1997

Case Number: VFA-0361

On December 29, 1997,(1) Charles G. Frazier completed the filing of an Appeal from a determination issued to him on November 10, 1997, by the Chicago Operations Office (Chicago) of the Department of Energy (DOE). That determination concerned a request for information submitted by Mr. Frazier pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the DOE in 10 C.F.R. Part 1004. If the present Appeal were granted, the DOE would be required to release a portion of the appointment books of certain Chicago employees.

I. Background

On October 16, 1997, Mr. Frazier submitted a Freedom of Information Act request to Chicago seeking copies of Cherri Langenfeld’s and Tim Crawford’s appointment books(2) reflecting all daily meetings for June 1997. Determination Letter dated November 10, 1997, from John P. Kennedy, Acting Manager, Chicago Operations Office, to Charles Frazier. In its November 10, 1997 Determination Letter, Chicago stated that the requested calendars constitute personal records and were not subject to the FOIA. Id.

Mr. Frazier appealed to this Office stating that he disagreed that the appointment calendars are personal records. He supports this claim by maintaining that Ms. Langenfeld’s appointment book is still at Chicago although she no longer works for

DOE. He challenges Chicago’s assertion that Mr. Crawford’s appointment book is personal in nature by declaring that Mr. Crawford’s secretary maintained an appointment book for the predecessor in Mr. Crawford’s position, Manager of Argonne Group. Appeal Letter from Charles G. Frazier to Director, OHA, DOE.

II. Analysis

The issue we must address is whether the appointment books requested by Mr. Frazier are “agency records.” The FOIA requires the disclosure only of “records” maintained by “agencies” within the executive branch of the federal government. 5 U.S.C. § 552(f). To support his claim that the requested information is an “agency record,” Mr. Frazier relies on the following: (1) despite her departure from Chicago, Ms. Langenfeld’s appointment book remains in the possession of her secretary, and (2) Mr. Crawford’s secretary maintained an appointment book for his predecessor.

We are not convinced by these arguments. The U.S. Court of Appeals for the District of Columbia has concluded that appointment calendars are not agency records. Bureau of National Affairs, Inc. v. Department of Justice, 742 F.2d 1484 (D.C. Cir. 1984) (BNA). In making its determination, the court relied on Kissinger v. Reporters Comm. For Freedom of the Press, 445 U.S. 136 (1980) (Kissinger). In Kissinger, the Supreme Court focused on four factors to determine whether a document is an “agency record:” whether the documents were (1) in the agency’s control; (2) generated within the agency; (3) placed into the agency’s files; and (4) used by the agency “for any purpose.” Kissinger, 445 U.S. at 157. The BNA court determined that the appointment calendars at issue were generated within the agency and prepared on government time, at government expense, and with government materials. BNA, 742 F.2d at 1494; see Kissinger, 445 U.S. at 157. The officials’ secretaries maintained the appointment calendars as part of their official duties. BNA, 742 F.2d at 1494. The appointment calendars were not placed into agency files. Id. Also, the employees were permitted to discard the appointment calendars at their discretion. Id. at 1494-1495. After reviewing these factors, the BNA court determined that the appointment calendars at issue were not under agency control and had not been placed into the agency files, even though the calendars had been generated within the agency. Therefore, the first three factors listed in Kissinger were in conflict with each other. Thus, the court concluded that it should look at the fourth factor and analyze how the documents were used within the agency in question. Id. at 1495. If the appointment calendars were used by the agency for any purpose, they would be considered “agency records.”

All the factors that were present in BNA are present here. Ms. Langenfeld’s and Mr. Crawford’s appointment books were generated within the agency and prepared on government time, at government expense, and with government materials. Similarly, Ms. Langenfeld’s and Mr. Crawford’s secretaries maintained the appointment books as part of their official duties. Neither Ms. Langenfeld’s or Mr. Crawford’s appointment books

have been placed in the agency files, and Ms. Langenfeld and Mr. Crawford were permitted to discard the books at their discretion. As the BNA court was compelled to analyze the purpose of the appointment calendars because the first three factors listed in the Kissinger opinion conflicted with each other, we must determine how the appointment books were used at Chicago.

The BNA court concluded that the appointment calendars at issue there were not “agency records” because (1) they were not distributed to other employees, but were retained solely for the convenience of the individual officials and (2) they were created for the personal convenience of the individuals to organize both their personal and business appointments. BNA, 742 F.2d at 1496. Similarly, Ms. Langenfeld and Mr. Crawford used their appointment books to organize both their business and personal activities. The appointment books facilitated the performance of their official duties by allowing them to keep their lives in order. See id. at 1494. Ms. Langenfeld’s book contained doctor and dentist appointments, along with both personal and business dinner engagements. Her business meetings and schedule were placed in the book as well. Similarly, Mr. Crawford’s appointment book contained both personal and business engagements. Other than their secretaries, no one but Ms. Langenfeld and Mr. Crawford had access to the appointment books. Neither of the appointment books was distributed to other employees; each was strictly for the use of Ms. Langenfeld and Mr. Crawford and their secretaries. Memorandum of Telephone Conversation between Janet R. H. Fishman, Attorney-Examiner, OHA, and Kim McMahon, Attorney, Chicago, January 14, 1998. Therefore, as the BNA court determined, we must conclude that these appointment books were created and maintained for the personal convenience of Ms. Langenfeld and Mr. Crawford so they could organize both their personal and business appointments.

The fact that Ms. Langenfeld’s calendar is still at Chicago does not change our determination. Ms. Langenfeld’s appointment book was merely a personal convenience. The only reason Ms. Langenfeld’s secretary has retained the book is to refresh her memory of Ms. Langenfeld’s schedule on occasion. We do not believe this action is enough to bring it up to the level of an “agency record.” At no time was the book in the agency’s control or was it placed into the agency’s files. Further, we do not find the fact that Mr. Crawford’s secretary kept his predecessor’s appointment book convincing. The court in BNA found that even though the officials’ secretaries maintained the appointment calendars, the books were maintained for the convenience of the official, not for any agency purpose. BNA, 742 F.2d at 1494. The fact that both Mr. Crawford and his predecessor wished to keep appointment books does not raise Mr. Crawford’s book to the level of an “agency record.”

After reviewing the totality of the circumstances surrounding the creation, maintenance, and use of these appointment books, we find that they are not “agency records” under the FOIA and, therefore, are not subject to its disclosure provisions. OXY Inc., 23 DOE ¶ 80,161, at 80,647 (1993). Accordingly, Mr. Frazier's Appeal should be denied.

It Is Therefore Ordered That:

(1) The Appeal filed on December 29, 1997, by Charles G. Frazier, Case No. VFA-0361, is hereby denied.

(2) This is a final Order of the Department of Energy from which any aggrieved party may seek judicial review pursuant to the provisions of 5 U.S.C. § 552(a)(4)(B). Judicial review may be sought in the district in which the requester resides or has a principal place of business, or in which the agency records are situated, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: January 28. 1998

(1)The Office of Hearings and Appeals (OHA) received Mr. Frazier’s letter on December 5, 1997. However, Mr. Frazier did not include a copy of Chicago’s Determination Letter. A copy of that letter was received on December 29, 1997.

(2) In his initial request, Mr. Frazier also asked for a copy of Jim Hooper’s appointment book. Determination Letter. He withdrew that part of his request in this Appeal. Appeal Letter from Charles G. Frazier to Director, OHA, DOE. Therefore, this Decision will address only Ms. Langenfeld’s and Mr. Crawford’s appointment books.