Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
PHYSICIANS COMMITTEE FOR RESPONSIBLE MEDICINE v. GLICKMAN
September 30, 2000
PHYSICIANS COMMITTEE FOR RESPONSIBLE MEDICINE, ET AL., PLAINTIFFS,
DAN GLICKMAN, SECRETARY, DEPARTMENT OF AGRICULTURE, ET AL.; DEFENDANTS.
The opinion of the court was delivered by: James Robertson, District Judge.
The National Nutritional Monitoring and Related Research Act of 1990
requires that the Secretaries of Agriculture and Health and Human
Services publish Dietary Guidelines for Americans at least once every
five years. 7 U.S.C. § 5341(a)(1). The Guidelines set forth
recommended nutritional and dietary information, and are relied upon by
federal agencies in carrying out their responsibilities under federal
food, nutrition, and health programs.
On September 18, 1997, acting pursuant to regulations issued under the
Act, USDA announced the formation of an advisory committee that would
consider whether the 1995 Dietary Guidelines for Americans should be
revised "based on thorough evaluation of recent scientific and applied
literature and, if so, [to] proceed to develop recommendations for these
revisions in a report to the Secretaries." 62 Fed. Reg. 48982 (Sept. 18,
1997). After soliciting nominees for Committee membership through
publication in the Federal Register, 62 Fed. Reg. at 48982, USDA announced
the appointment of an eleven-member Committee on August 28, 1998.
The Committee met from September 1998 through September 1999.
Beginning in June 1999, plaintiff Physicians Committee for Responsible
Medicine submitted FOIA requests to USDA seeking information about the
Committee and its members, including the financial disclosure forms of
all Committee members and records relating to persons who were nominated
but not appointed. The USDA responded to these FOIA requests by
releasing some and withholding others under specific FOIA exemptions. By
December 1999, according to USDA, "[a]ll documents which were made
available to or prepared by the Committee had been made available to the
public." Bowman Decl. at ¶ 12. In early February 2000, the Committee
issued its report to the Secretaries of Agriculture and Health and Human
Services, and the Committee was disbanded.
Plaintiffs, a collection of individuals and groups who assert that
their views on nutrition and health were not adequately represented on
the Committee, filed this action in December 1999. Count I of the
complaint, which has been dismissed by agreement, challenged the
composition of the Committee itself under sections 5(b) and 5(c) of
FACA. Count II alleges that defendants violated the public
accountability and disclosure requirements of FACA section 10(b) and
seeks a declaratory judgment that a violation occurred and discovery into
the extent of the violation. The question presented by Count III has
been narrowed to whether USDA violated FOIA by withholding and redacting
documents under FOIA Exemption 6.
Count II — Public Disclosure of Documents under FACA
1. Discovery concerning working groups
Notwithstanding the USDA's representation that "all documents which were
made available to or prepared for or by the Committee" have been made
available to the public, plaintiffs suspect that Committee working groups
generated documents that were never produced.
There is no record basis for such a suspicion. Plaintiffs do not attack
the adequacy of the defendants' affidavits, or challenge the thoroughness
of USDA's search of its records, or point to any "countervailing evidence
or apparent inconsistency of proof" that discredits the agency's position
that it has no such records. Perry v. Block, 684 F.2d 121, 127 (D.C.
Cir. 1982); see also Military Audit Project v. Casey, 656 F.2d 724, 738
(D.C. Cir. 1981) (relying on affidavits appropriate if they "are not
controverted by either contrary evidence in the record [or] by evidence
of agency bad faith"). Nevertheless, plaintiffs insist that additional
records must exist in the form of email communications between working
group members or notes from private meetings.
It may well be that Committee members exchanged personal emails and
telephone conversations. There is no evidence, however, that the agency
ever had records describing these events. An agency "is under no duty to
disclose documents not in its possession," Rothschild v. Department of
Energy, 6 F. Supp.2d 38,40 (D.D.C. 1998), nor is an agency required to
create documents to respond to FOIA requests, NLRB v. Sears, Roebuck &
Co., 421 U.S. 132, 161-62 (1975). See also Goldgar v. Office of
Buy This Entire Record For