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September 30, 2000


The opinion of the court was delivered by: James Robertson, District Judge.


In December 1999, plaintiffs filed a three-count complaint seeking declaratory and injunctive relief under the Federal Advisory Committee Act (FACA), 5 U.S.C. App. II, et seq. (1972), and the Freedom of Information Act (FOIA), 5 U.S.C. § 552, for claims arising out of the appointment and operation of the Dietary Guidelines Advisory Committee for Year 2000 by the United States Department of Agriculture (USDA) and the United States Department of Heath and Human Services (DHHS). The parties have agreed to the dismissal of Count I. Defendants have moved to dismiss Count II. The parties have filed cross-motions for summary judgment on Count III. After hearing oral argument on September 6, 2000, and having considered the entire record, I have decided for the reasons set forth in this memorandum that plaintiffs are entitled to a declaratory judgment on their FACA claim (Count II) and to the release of certain documents on their FOIA claim (Count III).


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

The relief plaintiffs seek is a judgment declaring that defendants violated the public disclosure requirements of FACA section 10 by failing to disclose on an ongoing basis all records prepared by or for the Committee. Plaintiffs also seek leave to take discovery directed to the question whether certain Committee working groups constituted "advisory committees" subject to FACA's disclosure requirements. The motion to dismiss asserts that all documents have been released, that the claims set forth in count II are moot, and that the injury plaintiffs allege is not redressable by the requested relief.

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 Administration, ...

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