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".
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 contained the official "daily agenda" of the Secretary as well as souvenirs and gifts for official visitors.
Representatives of The Washington Post now seek disclosure of the records of schedule on the grounds that the requested documents are "agency records" within the meaning of section 552(a)(4)(B) of the Freedom of Information Act. The Department of State vigorously denies the assertion and argues that the requested documents are "personal work aids" of Secretary Haig and thus not subject to FOIA access within the rationale of Bureau of National Affairs, supra.
It has long been established that the FOIA was enacted in furtherance of the belief that "an informed electorate is vital to the proper operation of a democracy." S.Rep. No. 813, 89th Cong., 1st Sess. 3 (1965), reprinted in Freedom of Information Act Source Book : Legislative Materials, Cases, Articles 38 (Comm. Print 1974) [hereinafter cited as "FOIA Source Book"]. Central to this purpose is the fundamental premise that "the public as a whole has a right to know what its government is doing." FOIA Source Book at 264. Congress found that this right can be maintained only where an informed electorate is provided with the opportunity to oversee both the actions and decisions of public officials and agencies. SDC Development Corp. v. Mathews, 542 F.2d 1116, 1119 (9th Cir. 1976).
This right of access to government information, however, is not absolute. Although Congress sought to expand public access, it limited that access to "agency records". Forsham v. Harris, 445 U.S. 169, 178, 63 L. Ed. 2d 293, 100 S. Ct. 977 (1980). A government agency cannot be held accountable for information under the FOIA which the agency has neither created nor possessed. Id. at 182. Rather, "the use of the word 'agency' as a modifier demonstrates that Congress contemplated some relationship between an 'agency' and the 'record' requested under the FOIA." Id. at 178. Defining this relationship, however, is complicated by the absence of a concise and well-defined body of case law. Moreover, the problem is further exacerbated by the absence of legislative guidance as to the precise meaning of the term "agency records". "As has often been remarked, the Freedom of Information Act, for all its attention to the treatment of 'agency records,' never defines that crucial phrase." McGehee v. Central Intelligence Agency, 225 U.S. App. D.C. 205, 697 F.2d 1095, 1106 (D.C. Cir. 1983) (footnotes omitted), modified in other respects, 711 F.2d 1076 (1983).
Nevertheless, the existing body of legal precedent does provide a set of parameters useful in focusing the initial inquiry. Among these guidelines is the central principle that the FOIA not be construed to encompass documents to which an agency merely has an unrestricted, but unexercised, right to obtain. Forsham, 445 U.S. at 186. The government has access to virtually unlimited documents and a contrary holding would place an unmanageable burden upon government agencies faced with corresponding demands for documents not intended to be reached under the FOIA. Id. at 186 n.17. In addition, the FOIA does not require that an agency receiving a FOIA request actually create responsive documents. Rather, the mandatory creation of government records is governed by the provisions of the Federal Records Act. Kissinger, 445 U.S. at 152 (citations omitted).
In summary, Congress contemplated that government agencies either obtain or create the requested records as a prerequisite to the documents becoming "agency records" within the meaning of the FOIA. Forsham, 445 U.S. at 182. This nexus must be established before the tripartite jurisdictional test can be satisfied. Where the requested documents have been obtained or created by the receiving agency, the FOIA provides that the documents be made available to any member of the public unless specifically exempted by the Act itself. See Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820, 823 (D.C. Cir. 1973).
The FOIA thus "represents a carefully balanced scheme of public rights and agency obligations designed to foster greater access to agency records than existed prior to its enactment." Kissinger, 445 U.S. at 150 (1980). There are, however, "no inherent incentives that . . . affirmatively spur government agencies to disclose information." Vaughn, 484 F.2d at 826. Therefore, balanced against this required nexus is the countervailing concern that government agencies not be allowed to defeat the purpose of the FOIA by artificially manipulating its terms. Mindful of this overarching admonition, the courts have consistently avoided the establishment of "bright-line" jurisdictional tests out of fear that such tests would provide a simple expedient for removing important government records from the intended coverage and presumptive disclosure provisions of the Act. See Bureau of National Affairs, 742 F.2d at 1493; see also McGehee, 697 F.2d at 1109 n.63. Moreover, these tests are incapable of "precise definition and may well change as relevant factors assume varying importance from case to case." Crooker v. United States Parole Commission, 730 F.2d 1, 5 (1st Cir. 1984), cited with approval in Bureau of National Affairs, 742 F.2d at 1490.
Thus posited, the Court is directed to conduct an examination into the "totality of the circumstances surrounding the creation, maintenance, and use . . ." of the documents to determine whether the material is, in fact, subject to the FOIA. Bureau of National Affairs, 742 F.2d at 1492-93. Resolution of this inquiry requires that the Court employ a bifurcated analysis. First, the Court is instructed to examine the "totality of the circumstances" underlying the creation of the document by reference to a four-factor test. This inquiry involves consideration as to whether:
(1) the document was generated within the agency seeking to avoid disclosure;
(2) the document has been placed into agency files;