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WASHINGTON POST v. UNITED STATES DEPT. OF STATE

April 14, 1986

THE WASHINGTON POST, Plaintiff,
v.
UNITED STATES DEPARTMENT OF STATE, Defendant



The opinion of the court was delivered by: SMITH

 JOHN LEWIS SMITH, JR., U.S.D.J.

 Plaintiff, The Washington Post, seeks access under the Freedom of Information Act, 5 U.S.C. § 552, to certain documents created by members of former Secretary of State Alexander Haig's staff during Secretary Haig's tenure as Secretary of State. Presently before the Court are cross-motions for summary judgment.

 I.

 The Freedom of Information Act ("FOIA" or "Act"), 5 U.S.C. § 552, empowers federal courts to order the disclosure of "agency records improperly withheld" by an "agency" from an individual requesting access. § 552(a)(4)(B). The requirements of this provision are jurisdictional. Disclosure of materials from an agency subject to the FOIA may only be obtained upon a "showing that [the] agency has (1) 'improperly'; (2) 'withheld'; (3) 'agency records.'" Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150, 100 S. Ct. 960, 968, 63 L. Ed. 2d 267 (1980).

 This case confronts the third-prong of the requirement. At issue is whether a set of documents compiled daily within the Office of the Secretary of State during the tenure of Secretary of State Alexander M. Haig, Jr., and consisting of a contemporaneously generated record of official meetings, acts, and telephone calls, may be deemed an "agency record" subject to disclosure under the Act. Before turning to the merits, a review of the principal undisputed facts will be useful.

 A. Procedural History

 In 1982, following the announcement of Secretary Alexander Haig's decision to resign, representatives of The Washington Post sought access under the FOIA to:

 
All meeting logs, telephone call logs, daily schedules, trip itineraries, personal calendars and diaries from January 1, 1981 to the present relating to meetings, telephone calls, conferences and activities of Secretary of State Alexander M. Haig., Jr.

 Because Secretary Haig's decision had only recently been announced, the request specifically asked that the Department of State retain copies of all records complying with the request upon Secretary Haig's departure from office. Plaintiff further requested that the Department invoke its discretion to release any materials deemed by the agency to be exempt from disclosure under the Act.

 After protracted dispute over the parameters of the request, the facts of which are not important to the present inquiry, the Department of State released copies of the Secretary's daily schedules and trip itineraries, and simultaneously denied access to all materials concerning meeting logs, telephone call logs, and personal calendars. It was the opinion of the Information and Privacy Coordinator at the Department of State that these latter materials were "personal records" of the Secretary and not subject to disclosure under the Act. The State Department also informed plaintiff that Secretary Haig did not maintain a personal diary and thus no document meeting this definition was available for disclosure.

 Following the exhaustion of administrative remedies, plaintiff brought the present action in District Court. Thereafter, proceedings in the case were stayed pending the decision in Bureau of National Affairs, Inc. v. United States Department of Justice, 239 U.S. App. D.C. 331, 742 F.2d 1484 (D.C. Cir. 1984), a case then on appeal to the District of Columbia Circuit which presented the questions whether telephone message slips and appointment calendars prepared for the personal convenience of Assistant Attorney General William Baxter were "agency records" under the FOIA. That case held, on the basis of the facts presented, that the telephone message slips and appointment calendars were not "agency records" for purposes of the FOIA. 742 F.2d at 1495-96.

 B. Records of Schedule

 Following the decision in Bureau of National Affairs, plaintiff dropped its request for personal diaries and telephone message slips and elected to pursue only those documents known as the "records of schedule". *fn1" The "records of schedule" are comprised of typewritten transcriptions of documents compiled on a daily basis by members of the staff of former Secretary of State Alexander Haig. It is undisputed that the records of schedule were not created at the request of Secretary Haig. The Secretary did not have direct access to the records and, in fact, was never made aware of their existence. Rather, the decision to create the records was initiated by a suggestion from Secretary Haig's receptionist -- a suggestion which was approved by the Executive Assistant to the Secretary.

 The creation and maintenance of the records of schedule were effected through the combined efforts of Secretary Haig's personal secretary and receptionist. Essentially, the two staff members maintained daily handwritten logs chronicling the official and unofficial activities of the Secretary and containing information gleaned by their personal monitoring of events occurring both within and outside the Office of the Secretary of State. These logs included information on all anticipated and unanticipated meetings attended by Secretary Haig, both within and outside the Department of State, as well as information concerning the exact time, date and place of the meeting, and the identities of the participants. The logs were also maintained to keep a record of all telephone calls placed to the Secretary and the time and date of the call. Other staff members occasionally provided the information when Secretary Haig's personal secretary and receptionist were either unavailable or unaware of the transaction.

 The logs were later transcribed at the close of each day and combined to form a "record of schedule", a process which frequently mandated that the two staff members remain after hours. During periods of heavy work volume, the records were not transcribed until days or weeks after the events. This combined record, as typewritten and supplemented, was then stored in a central filing cabinet, which ...


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