Are “personal notes” maintained by an agency employee subject to FOIA disclosure?
Because the FOIA applies only to agency records, “personal notes” maintained by an agency employee should not be subject to FOIA disclosure. Unfortunately, the terms “agency record” and “personal notes” are not adequately defined. Therefore, issues involving the applicability of the FOIA to “personal notes” must be decided on a case-by-case basis. Surprisingly, there have been very few such cases litigated. One case recently decided, however, suggests the factors that courts may consider in determining the status of “personal notes.” The documents at issue in British Airports Authority v. CAB, 531 F. Supp. 408, 412 (D.D.C. 1982), were handwritten notes made by an employee solely for use in preparing a memorandum for other agency officials. In holding that such notes were not agency records subject to the FOIA, the court emphasized that they were personal in nature, that the employee need not have created them, that he intended them not to be permanent, and that he kept them in his pers
