## Facts

- Two consolidated actions challenged federal agencies’ refusals to disclose documents under the Freedom of Information Act (FOIA).
- A legal/news publisher sought the Assistant Attorney General for Antitrust’s appointment records reflecting meetings with persons outside the Department of Justice.
- The official maintained desk calendars and related appointment materials for personal convenience; they included both official and personal entries and were not always updated.
- The calendars were not treated as part of official agency files; the official retained control over them and could dispose of them at his discretion, though aides sometimes consulted them to locate him.
- A public-interest organization sought, from the Office of Management and Budget (OMB), appointment calendars and phone logs of several OMB officials involved in environmental regulatory matters.
- The same request also sought non-binding budgetary recommendations and related communications submitted during the internal executive-branch budget process concerning environmental program implementation.
- The agencies denied disclosure, arguing (1) the calendars/logs were not “agency records” and (2) the budget recommendations were also protected by FOIA Exemption 5.
- The district court issued rulings that led to cross-appeals; the D.C. Circuit consolidated the cases to address common questions about “agency records” and Exemption 5.

## Issues

1. Whether appointment calendars, phone logs, and daily agendas kept primarily for an official’s personal convenience—containing mixed personal and official entries and subject to the official’s discretionary retention—are “agency records” subject to FOIA.
2. Whether non-binding agency budget recommendations and related predecisional communications to OMB are protected from disclosure under FOIA Exemption 5.

## Decision

- The court held that appointment materials created solely for an individual’s convenience, containing mixed personal and business entries, and disposable at the individual’s discretion are not “agency records” under FOIA.
- The court held that non-binding budgetary recommendations submitted within the executive branch to OMB are protected from disclosure by FOIA Exemption 5.
- The court’s rulings resulted in partial affirmance and partial reversal of the district court dispositions across the consolidated cases, consistent with these holdings.

## Legal Principles

- FOIA applies only to “agency records”; physical possession by an agency employee does not alone make a document an agency record.
- Whether a document is an agency record turns on its function and the agency’s institutional use and control, including whether it is created to preserve knowledge of agency activities and maintained as part of agency files.
- Personal working aids (aides-mémoire) used for an individual official’s scheduling convenience, especially when mixed with personal matters and not subject to agency recordkeeping controls, fall outside FOIA.
- FOIA Exemption 5 protects inter- or intra-agency communications that would be privileged in civil discovery, including deliberative-process materials.
- Recommendations and analyses in the internal budget process are protected under Exemption 5 when they are predecisional and deliberative (reflecting options, evaluative judgments, and advice preceding final decisions).

## Conclusion

The D.C. Circuit limited FOIA’s reach to documents subject to agency institutional control and excluded personal-convenience calendars and logs from the definition of “agency records,” while also protecting predecisional, deliberative budget recommendations to OMB from disclosure under Exemption 5.


Bureau of Nat’l Affs., Inc. v. U.S. Dep’t of Just., 742 F.2d 1484 (D.C. Cir. 1984)