The opinion of the court was delivered by: Leval, District Judge.
The appellate court decision that appears most helpful in
analyzing the issue is Bureau of National Affairs, Inc. v.
United States Department of Justice, 742 F.2d 1484 (D.C. Cir.
1984) ("BNA"), which discussed the criteria for determining
whether documents created by an agency's employees constituted
"agency records" for FOIA purposes.*fn3 In BNA, the Court of
Appeals for the District of Columbia Circuit considered whether
the appointment calendar, telephone message slips, and daily
agenda of William Baxter, the Assistant Attorney General for
Antitrust, were agency records of the Department of Justice
under FOIA. The BNA court noted that in Kissinger, the Supreme
Court focused on four factors: "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.'" 742 F.2d at 1489-90. BNA interpreted the prior
case law to mean that the inquiry should focus on the "totality
of the circumstances surrounding the creation, maintenance, and
use of the document." 742 F.2d at 1492-93. While BNA stated
that all these factors remain relevant in determining the
status of documents created by an agency employee and located
within an agency, the court focused particularly on the use of
In BNA, the court discussed whether the various records were
"personal" both in the sense of not related to agency business
and in the sense of utilized by only one individual. Other
decisions make clear that personal use, without regard to
content, may cause documents to be considered personal, not
agency, records. In American Federation of Government
Employees, Local 2782 v. United States Department of Commerce,
632 F. Supp. 1272 (D.D.C. 1986), aff'd on other grounds,
907 F.2d 203 (D.C. Cir. 1990) ("AFGE"), the court determined that
handwritten logs kept in the front of certain notebooks were
not agency records, stressing that the documents, though
work-related, were for the personal use of the author:
632 F. Supp. at 1277. In Miranda Manor, Ltd. v. United States
Department of Health and Human Services, No. 85 C 10015, 1986
WL 4426 (N.D.Ill. Apr. 8, 1986), the operators of a nursing
home sought access to the notes of individual surveyors, made
during an HHS survey of the nursing home. Although the notes
were clearly related to the work of the agency, the court
emphasized that they were utilized solely by their authors and
concluded that the notes were not agency records.
Slip op. at 2 (citations omitted); see also Dow Jones & Co. v.
General Servs. Admin., 714 F. Supp. 35 (D.D.C. 1989); Kalmin v.
Department of the Navy, 605 F. Supp. 1492 (D.D.C. 1985). The
court applied a similar analysis in Washington Post v. United
States Department of State, 632 F. Supp. 607 (D.D.C. 1986)
considering a request for the "records of schedule" of
Secretary of State Alexander Haig. The "records of schedule"
were typewritten transcriptions of daily logs kept by Secretary
Haig's personal secretary and his receptionist, chronicling
Haig's official and unofficial activities. In finding that the
documents were agency records, the court emphasized that the
documents were kept in agency files and that Haig, himself, did
not make personal use of the material. The court stated:
Nothing in this opinion should be construed to
contravene the holding in Bureau of National
Affairs that personal papers created solely for the
personal use and convenience of the author are not
encompassed by the FOIA. . . . [T]he Court
concludes, that where the creation and maintenance
of a document evinces numerous indicia of agency
recordkeeping, under circumstances totally lacking
in incidents of personal use, the document may be
deemed subject to disclosure under the Act.
632 F. Supp. at 616 (citation omitted).
In sum, though BNA cautions that factors other than use must
be considered, it is clear that courts have followed the lead
of BNA in deeming agency or personal use to be an important
element in determining whether documents created by agency
personnel are agency records.
The documents at issue here are handwritten notes of
meetings and telephone conversations, taken by two employees
of the Bank, Executive Vice President Chester B. Feldberg and
Vice President Barbara L. Walter. The defendants have
submitted affidavits of Feldberg and Walter describing the
preparation, storage, and use of the notes.
The notes are only partial reflections of conversations, and
the employee made no attempt to complete omissions or check
the accuracy of the notes. Feldberg Aff. ¶¶ 8-9; Walter Aff. ¶¶
11-12. The notes were taken at the employee's own initiative,
to enhance his or her own recollection. Feldberg Aff. ¶ 11;
Walter Aff. ¶ 14. The notes were kept in a locked drawer in the
credenza behind the employee's desk, and only the employee and
the employee's secretary had access to the drawer. Feldberg
Aff. ¶¶ 16-17; Walter Aff. ¶¶ 19-20. Before the FOIA request,
no one other than the employee ever read or handled the notes.
Feldberg Aff. ¶ 19; Walter Aff. ¶ 22. The only time Walter
utilized the notes was in verifying a chronology used in
connection with testimony of Alan Greenspan, Chairman of the
Board of Governors of the Federal Reserve System, before a
subcommittee of the House Judiciary Committee. Walter Aff. ¶
29. Feldberg avers that before the litigation commenced, he
never reviewed his notes or relied on them in any way. Feldberg
Aff. ¶ 25.
It is clear that the documents were created by agency
employees to assist them in their performance of agency
duties. The fact that a "significant portion" of the notes
were taken after regular bank hours does not affect this
conclusion. The notes were not, however, placed in agency
files, and it was apparently the practice of the employees to
discard notes of this kind from time to time, Feldberg Aff.
¶ 15; Walter Aff. ¶ 18.
The affidavits establish that the notes were for the
personal use of the employees. As with the appointment
calendars in BNA, the logs in AFGE, and the surveyors' notes in
Miranda Manor, the documents here were created by the employees
for their own personal convenience, and the documents served no
other agency function. The notes were not written for
circulation within the agency, nor were they created or stored
in a manner conducive to consultation by agency personnel,
other than the maker. No one beside the writers (and their
secretaries) had access to the notes, and no one beside the
writer ever saw them.
On consideration of the Supreme Court's Kissinger factors, I
conclude that only one of the four favors a finding that the
documents are agency records. The documents were indeed
"generated within the agency." On the other hand, they were not
"in the agency's control," "placed into the agency's files," or
"used by the agency." BNA, 742 F.2d at 1489-90. I conclude that
the notes are not "agency records" under FOIA.
This conclusion accords with the cases cited above, as well
as with two other pre-BNA district court cases concerning
personal notes. In Porter County Chapter of the Izaak Walton
League of America, Inc. v. United States Atomic Energy
Commission, 380 F. Supp. 630 (N.D.Ind. 1974), the court found
that handwritten notes of Atomic Energy Committee staff
members, prepared in connection with a licensing proceeding,
were not agency records. The court expressed concern that
private mental processes of the employees would discourage
employee's from committing thoughts to writing and would
impede the functioning of the agency. Id. at 633. British
Airports Authority v. Civil Aeronautics Board, 531 F. Supp. 408
(D.D.C. 1982), addressed the status of twenty-five pages of
handwritten notes, prepared by an employee of the Civil
Aeronautics Board ("CAB"), reflecting various events and
meetings the employee attended. Relying on Porter, the court in
British Airports upheld the CAB's claim that the notes were not
agency records, but the "personal professional property" of the
employee. 531 F. Supp. at 415-16.
In BNA, the D.C. Circuit criticized the reasoning of Porter
and, by implication, British Airports, and declined to follow
their method of analysis. 742 F.2d at 1493-94. That criticism,
though, stemmed from Porter's focus on the content of the notes
in question. See BNA, 742 F.2d at 1494 ("The court's analysis
in Porter County was based entirely on the content of the
notes, not on the agency's control, possession or use of the
notes."). BNA held that consideration of the content, as
opposed to the control, possession or use, of notes was
inappropriate in deciding whether the notes constituted agency
records. BNA stated that the concerns expressed in Porter were
properly addressed within the enumerated statutory exceptions
to FOIA, which contain content-based exemptions. See 5 U.S.C. § 552(b).
While criticizing the reasoning of Porter and British
Airports, BNA did not explicitly reject their holdings. Cases
subsequent to BNA have continued to cite the holdings of
British Airports and Porter with approval, see AFGE,
632 F. Supp. 1272 (D.D.C. 1986); Miranda Manor, Ltd. v. United
States Department of Health and Human Services, No. 85 C 10015,
1986 WL 4426 (N.D.Ill. Apr. 8, 1986), and there is no reason to
read BNA as suggesting that documents of the kind involved in
British Airports and Porter should be deemed agency records.
Plaintiff contends that this suit presents a novel element
that distinguishes it from the cases discussed above in that
the notes of Walter and Feldberg are the only existing record
of the meetings and conversations they reflect. Plaintiff,
however, offers no authority for the proposition that a
document's status as a personal or an agency record should
depend on whether the contents of the document are available
from other sources. As plaintiff recognizes, in determining
whether documents are agency records, courts focus on the
"totality of the circumstances surrounding the creation,
maintenance, and use" of the documents. BNA, 742 F.2d at
1492-93. Even if plaintiff is correct that the uniqueness of
the document's content is one of the circumstances to be
considered, the court rejects the suggestion that it is an
"overriding circumstance" that renders the notes at issue
The documents requested are not "agency records" under FOIA.
Hence, this court lacks subject matter jurisdiction.
Defendant Bank's motion for summary judgment and defendant
Board's motion to dismiss for lack of subject matter
jurisdiction are granted. Plaintiff's motion to compel
production of a Vaughn index is denied.
The clerk is directed to enter judgment dismissing the