UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

DAVE LEVINTHAL, et al., ) 

 ) 

 Plaintiffs, ) Civ. No. 15-1148 (JEB) 

 ) 

 ) 

 v. ) 

 ) 

 ) MOTION FOR 

FEDERAL ELECTION COMMISSION, ) SUMMARY JUDGMENT 

 ) 

 Defendant. ) 

 ) 

 

DEFENDANT FEDERAL ELECTION COMMISSION’S 

MOTION FOR SUMMARY JUDGMENT 

Defendant Federal Election Commission hereby moves this Court for an order granting 

summary judgment to the Commission pursuant to Rule 56 of the Federal Rules of Civil 

Procedure and Local Rule 7(h). As discussed in the accompanying memorandum of points and 

authorities, the Commission has complied with its obligation under the Freedom of Information 

Act. There are no material facts in dispute and the Commission is entitled to judgment in its 

favor as a matter of law. 

A statement of material facts not in dispute and a proposed order are attached to the 

Commission’s Memorandum. 

 Respectfully submitted, 

Daniel A. Petalas (D.C. Bar No. 467908) 

Acting General Counsel 

dpetalas@fec.gov 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Deputy General Counsel — Law 

lstevenson@fec.gov 

Case 1:15-cv-01148-JEB Document 14 Filed 02/12/16 Page 1 of 24
2

Kevin Deeley 

Acting Associate General Counsel 

kdeeley@fec.gov 

 

Erin Chlopak (D.C. Bar No. 496370) 

Acting Assistant General Counsel 

echlopak@fec.gov 

/s/ Greg J. Mueller 

Greg J. Mueller (D.C. Bar No. 462840) 

Attorney 

gmueller@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

(202) 694-1650 

February 12, 2016

Case 1:15-cv-01148-JEB Document 14 Filed 02/12/16 Page 2 of 24
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

DAVE LEVINTHAL, et al., ) 

 ) 

 Plaintiffs, ) Civ. No. 15-1148 (JEB) 

 ) 

 ) 

 v. ) 

 ) 

 ) MEMORANDUM 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant. ) 

 ) 

FEDERAL ELECTION COMMISSION’S MEMORANDUM IN SUPPORT OF ITS 

MOTION FOR SUMMARY JUDGMENT 

Daniel A. Petalas (D.C. Bar No. 467908) 

Acting General Counsel 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Deputy General Counsel — Law 

Kevin Deeley 

Acting Associate General Counsel 

 

Erin Chlopak (D.C. Bar No. 496370) 

Acting Assistant General Counsel 

Greg J. Mueller (D.C. Bar No. 462840) 

Attorney 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

February 12, 2016 (202) 694-1650

Case 1:15-cv-01148-JEB Document 14 Filed 02/12/16 Page 3 of 24
i

TABLE OF CONTENTS 

BACKGROUND .......................................................................................................................1 

ARGUMENT .............................................................................................................................3 

I. STANDARD OF REVIEW ...........................................................................................3 

II. THE PERSONAL CALENDARS OF THREE FEC COMMISSIONERS 

 ARE NOT “AGENCY RECORDS” SUBJECT TO DISCLOSURE 

 UNDER FOIA ...............................................................................................................4 

A. Judicial Authority to Order Disclosure Under FOIA is Limited to 

 Documents That Are “Agency Records” ..........................................................4 

B. Agency Officials’ Personal Scheduling Documents Are Not 

 Agency Records .................................................................................................5 

1. Commissioner Hunter’s Personal Calendar is 

 Not an Agency Record ...........................................................................8 

2. Chairman Petersen’s Personal Calendar is 

 Not an Agency Record ...........................................................................9 

3. Vice Chairman Walther’s Personal Calendar is 

 Not an Agency Record .........................................................................10 

III. THE COMMISSION’S RESPONSE TO PLAINTIFFS’ 

 FOIA REQUEST IS COMPLETE...............................................................................12 

CONCLUSION ........................................................................................................................13 

 

Case 1:15-cv-01148-JEB Document 14 Filed 02/12/16 Page 4 of 24
ii

TABLE OF AUTHORITIES 

Cases Page 

Adionser v. Dep’t of Justice, 811 F. Supp. 2d 284 (D.D.C. 2011) ..........................................12

Anguimate v. Dep’t of Homeland Security, 918 F. Supp. 2d 13 (D.D.C. 2013) ........................4

Bloomberg, L.P. v. SEC, 357 F. Supp. 2d 156 (D.D.C. 2004) .................................................11

Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521 (D.C. Cir. 2011) ................3

Bureau of Nat’l Affairs, Inc. v. Dep’t of Justice, 

 742 F.2d 1484 (D.C. Cir. 1984) ..........................................................1, 5, 6, 7, 9, 10, 11, 12 

Burka v. Dep’t of Health & Human Servs.,

 87 F.3d 508 (D.C. Cir. 1996) ..................................................................................5, 8, 9, 11

Competitive Enter. Inst. v. NASA, 989 F. Supp. 2d 74 (D.D.C. 2013) ..................................4, 5

Consumer Fed’n of Am. v. Dep’t of Agric., 

 455 F.3d 283 (D.C. Cir. 2006) ....................................................1, 4, 5, 6, 7, 8, 9, 10, 11, 12 

Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 

 489 U.S. 749, 755 (1989) ......................................................................................................4 

Dep’t of Justice v. Tax Analysts, 492 U.S. 136 (1989) ..............................................................5

Gallant v. NLRB, 26 F.3d 168 (D.C. Cir.1994) .........................................................................4

Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208 (D.C. Cir. 2013) ...............................12

Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980) .....................12

Perry v. Block, 684 F.2d 121 (D.C. Cir. 1982) ........................................................................12

Richardson v. U.S. Dep’t of Justice, 730 F. Supp. 2d 225 (D.D.C. 2010) ...............................12

SafeCard Servs., Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991) .................................................4

Tax Analysts v. Dep’t of Justice, 845 F.2d 1060 (D.C. Cir. 1988) ........................................5, 9

Tijerina v. Walters, 821 F.2d 789 (D.C. Cir. 1987) .................................................................12

Voinche v. FBI, 999 F.2d 962 (5th Cir. 1993) .........................................................................12 

Case 1:15-cv-01148-JEB Document 14 Filed 02/12/16 Page 5 of 24
iii

Statutes 

52 U.S.C. §§ 30101-30146 ........................................................................................................1

5 U.S.C. § 552 ............................................................................................................................1 

5 U.S.C. § 552(a)(4)(B) .............................................................................................................4

Case 1:15-cv-01148-JEB Document 14 Filed 02/12/16 Page 6 of 24
The Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, establishes a statutory right 

of public access to documents and records of federal agencies. It does not grant the public a 

right to examine the personal records of agency officials. Plaintiffs Dave Levinthal and the 

Center for Public Integrity contest a narrow aspect of the Federal Election Commission’s (“FEC” 

or “Commission”) response to their FOIA request for scheduling documents and records used by 

FEC Commissioners. Specifically, plaintiffs ask this Court to decide whether certain 

Commissioners’ personal calendars are subject to disclosure under FOIA. As detailed below, the 

Commission has complied with plaintiffs’ FOIA request and completed its production of 1100 

pages of non-exempt, responsive scheduling documents. Plaintiffs apparently believe that the 

Commission possesses responsive calendars used by three Commissioners that have been 

improperly withheld. Those Commissioners’ personal calendars are not agency records. 

The question of whether agency officials’ personal calendars are “agency records” 

subject to FOIA is well settled in this Circuit. In at least two separate cases, the Court of 

Appeals has squarely held that an agency official’s personal calendar is not an “agency record” 

subject to disclosure under FOIA. See Consumer Fed’n of Am. v. Dep’t of Agric., 455 F.3d 283 

(D.C. Cir. 2006); Bureau of Nat’l Affairs, Inc. v. Dep’t of Justice, 742 F.2d 1484 (D.C. Cir. 

1984). Those cases control the outcome of this narrow dispute and confirm that the Commission 

is entitled to summary judgment and this case should be dismissed. 

BACKGROUND 

The Commission is the independent agency of the United States government with 

exclusive jurisdiction over the administration, interpretation, and civil enforcement of the Federal 

Election Campaign Act (“FECA”), codified at 52 U.S.C. §§ 30101-30146 (formerly 2 U.S.C. 

§§ 431-457). 

Case 1:15-cv-01148-JEB Document 14 Filed 02/12/16 Page 7 of 24
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Plaintiffs Dave Levinthal and the Center for Public Integrity requested through FOIA: 

all scheduling documents and/or records — be them in paper or 

electronic form — used by FEC commissioners. 

Such documents should include, but not be limited to, calendars, 

schedules, emails, and itineraries that list or account for 

commissioners’ meetings, whereabouts or travels when conducting 

government business or traveling to/from engagements or duties 

involving government business. 

Plaintiffs’ FOIA request sought the above-described documents within the timeframe October 

21, 2013 through August 14, 2014. (Decl. of Katie A. Higginbothom ¶ 2, Feb. 10, 2016.) 

 The Commission complied with plaintiffs’ FOIA request, releasing a total of 1100 

pages of non-exempt, responsive Commissioner scheduling documents, or the non-exempt 

portions of such scheduling documents. The Commission completed its release of non-exempt, 

responsive agency records on October 14, 2015. (Higginbothom Decl. ¶ 8.) 

On July 20, 2015, after the Commission had produced one batch of non-exempt, 

responsive agency records, plaintiffs filed this FOIA action. The Commission completed its 

production of non-exempt records a few months later. Plaintiffs’ complaint asked the Court, 

inter alia, to order the Commission “to make the requested records available to Plaintiffs.” 

(Compl. Demand for Relief ¶ 2.) 

 As described in the parties’ joint filings regarding the status of the underlying FOIA 

request and the summary judgment briefing schedule (Docket Nos. 9, 11), between October and 

December 2015, the parties worked together to identify and narrow the scope of any questions 

the plaintiffs had regarding the Commission’s response to their FOIA request. (Decl. of Greg J. 

Mueller ¶ 5, Feb. 12, 2016.) Most relevant here, the FEC confirmed, in response to the 

plaintiffs’ specific inquiry, that “[n]either Commissioner Hunter, nor Commissioner Walther, nor 

Case 1:15-cv-01148-JEB Document 14 Filed 02/12/16 Page 8 of 24
3

Vice Chair Petersen maintains a calendar that constitutes an agency record subject to FOIA.”1

 

(Mueller Decl. ¶ 6; Letter from Greg J. Mueller to Peter Newbatt Smith (Dec. 4, 2015), attached 

as Exh. A to Mueller Decl.; see also infra pp. 8-12.) 

The parties resolved most of the disputed issues related to the plaintiffs’ FOIA request 

during their negotiations. (Mueller Decl. ¶ 7.) On December 10, 2015, counsel for the plaintiffs 

clarified that plaintiffs are seeking judicial review of only one remaining issue in this case: 

whether the Commission improperly withheld any calendars or other “scheduling information” 

that are used by Commissioner Hunter, Chairman Petersen, or Vice Chairman Walther and 

qualify as “agency records.” (Id. ¶ 7; Email from Peter Newbatt Smith to Greg J. Mueller (Dec. 

10, 2015), attached as Exh. B. to Mueller Decl. (“Smith Email (Dec. 10, 2015)”).) Plaintiffs’ 

counsel further clarified that the plaintiffs “will not seek judicial review” concerning other 

aspects of the Commission’s FOIA response, and proposed that the parties’ summary-judgment 

briefing should be “limited to responsive records concerning those three commissioners.” 

(Smith Email (Dec. 10, 2015).) 

ARGUMENT 

I. STANDARD OF REVIEW 

 FOIA matters are typically resolved on motions for summary judgment. Brayton v. 

Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). Where, as here, the 

FOIA dispute concerns the fundamental question of whether certain documents sought are 

“agency records” subject to disclosure under FOIA, the issue before the court is “whether the 

 

1 At the end of 2015, the Commission elected Commissioner Matthew Petersen to serve 

as Chairman of the agency and Commissioner Steven Walther to serve as Vice Chairman. 

Except where quoting earlier references to the Commissioners, this Brief refers to Chairman 

Petersen and Vice Chairman Walther by their current titles. 

Case 1:15-cv-01148-JEB Document 14 Filed 02/12/16 Page 9 of 24
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agency has sustained its burden of demonstrating that the documents requested are not ‘agency 

records.’” Consumer Fed’n of Am., 455 F.3d at 287 (quoting Gallant v. NLRB, 26 F.3d 168, 171 

(D.C. Cir.1994)).

“Under FOIA, ‘[s]ummary judgment may be granted on the basis of agency affidavits if 

they contain reasonable specificity of detail rather than merely conclusory statements, and if they 

are not called into question by contradictory evidence in the record or by evidence of agency bad 

faith.’” Id. (quoting Gallant, 26 F.3d at 171).

“Agency affidavits submitted in the FOIA context are . . . ‘accorded a presumption of 

good faith.’” Anguimate v. Dep’t of Homeland Security, 918 F. Supp. 2d 13, 17 (D.D.C. 2013) 

(quoting SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)). 

In a case brought under FOIA seeking to enjoin an agency from withholding a purported 

agency record, the district court “shall determine the matter de novo.” 5 U.S.C. § 552(a)(4)(B); 

Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989). 

II. THE PERSONAL CALENDARS OF THREE FEC COMMISSIONERS ARE NOT 

“AGENCY RECORDS” SUBJECT TO DISCLOSURE UNDER FOIA 

A. Judicial Authority to Order Disclosure Under FOIA is Limited to Documents 

That Are “Agency Records” 

“A document is subject to disclosure under the FOIA only if it is an ‘agency record.’” 

Competitive Enter. Inst. v. NASA, 989 F. Supp. 2d 74, 85 (D.D.C. 2013) (quoting 5 U.S.C. 

§ 552(a)(4)(B)). As the Court of Appeals for the D.C. Circuit has correspondingly recognized, 

“FOIA grants the district court ‘jurisdiction to enjoin [an] agency from withholding agency 

records and to order the production of any agency records improperly withheld from the 

complainant.’” Consumer Fed’n of Am., 455 F.3d at 286 (citing 5 U.S.C. § 552(a)(4)(B); 

emphasis added)). By definition, such jurisdiction is limited to documents that qualify as 

Case 1:15-cv-01148-JEB Document 14 Filed 02/12/16 Page 10 of 24
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“agency records,” i.e., documents that are created or obtained by the agency, and over which the 

agency exercises control “in the sense that [the documents] ‘have come into the agency’s 

possession in the legitimate conduct of its official duties.’” Id. at 287 n.7 (quoting Dep’t of 

Justice v. Tax Analysts, 492 U.S. 136, 144-45 (1989)). Courts lack jurisdiction under FOIA to 

require disclosure of documents that are not agency records. 

Courts in this Circuit apply a “totality of the circumstances test to distinguish ‘agency 

records’ from personal records.” Id. The test focuses on “‘factors surrounding the creation, 

possession, control, and use of the document by the agency.’” Id. (quoting Bureau of Nat’l 

Affairs, Inc. v. Dep’t of Justice, 742 F.2d 1484, 1490 (D.C. Cir. 1984)). Specifically, courts in 

this Circuit determine whether a document is an agency record by evaluating “‘(1) the intent of 

the document’s creator to retain or relinquish control over the records; (2) the ability of the 

agency to use and dispose of the record as it sees fit; (3) the extent to which agency personnel 

have read or relied upon the document; and (4) the degree to which the document was integrated 

into the agency’s record system or files.’” Burka v. Dep’t of Health & Human Servs., 87 F.3d 

508, 515 (D.C. Cir. 1996) (quoting Tax Analysts v. Dep’t of Justice, 845 F.2d 1060, 1069 (D.C. 

Cir. 1988), aff’d, 492 U.S. 136 (1989)); see Consumer Fed’n of Am., 455 F.3d at 287 n.7 (same). 

In considering these factors, courts are mindful of the Supreme Court’s clarification that “‘the 

term ‘agency records’ is not so broad as to include personal materials in an employee’s 

possession, even though the materials may be physically located at the agency.’” Competitive 

Enter. Inst., 989 F. Supp. 2d at 85 (quoting Tax Analysts, 492 U.S. at 145). 

B. Agency Officials’ Personal Scheduling Documents Are Not Agency Records 

In two separate cases, the D.C. Circuit Court of Appeals has applied the totality of the 

circumstances test to the specific context at issue here, agency officials’ scheduling documents. 

Case 1:15-cv-01148-JEB Document 14 Filed 02/12/16 Page 11 of 24
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Consumer Fed’n of Am., 455 F.3d 287; Bureau of Nat’l Affairs, 742 F.2d 1484. The two 

decisions define the circumstances that distinguish an agency official’s personal calendar from a 

calendar that constitutes an “agency record.” 

In Bureau of National Affairs, the Court of Appeals considered whether two different 

types of scheduling documents — desk appointment calendars and daily agendas — used by a 

former Assistant Attorney General for Antitrust constituted “agency records” subject to 

disclosure under FOIA. 742 F.2d at 1487, 1494-96. The desk appointment calendars contained 

entries reflecting “the location of a meeting or appointment, the people expected to be present, 

and on occasion, the general purpose of the meeting or appointment.” Id. at 1487. The daily 

agendas similarly reflected the same official’s “schedule on a given day.” Id. Both sets of 

scheduling documents also included entries related to the official’s personal appointments. Id. at 

1487, 1496. 

The Court determined whether each set of scheduling documents were “agency records” 

by evaluating how such documents were “used within the agency.” Id. at 1495. The Court held 

that the official’s desk appointment calendars, which were retained “solely for the convenience 

of the individual officials” to organize his “personal and business appointments,” and “were not 

distributed to other employees,” were personal records and not “agency records” covered by 

FOIA. Id. at 1496. The fact that the official’s principal assistants “occasionally had access to 

the calendars,” did not alter the personal nature of such documents. Id. at 1487. 

By contrast, the Court held that the same official’s daily agendas, which served “to 

inform the staff of [the official’s] availability” and “facilitated the day-to-day operations” of his 

office, and which were “distributed to top staff [throughout the Department of Justice’s] 

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Antitrust Division so that they would know [the official’s] schedule on a given day,” were

“agency records” subject to disclosure under FOIA. Id. at 1487, 1495-96. 

Two decades later, in Consumer Federation of America, the Court of Appeals described 

its analysis from Bureau of National Affairs as a “template” for drawing distinctions between the 

calendars of several different agency officials. 455 F.3d at 288. The Court in Consumer 

Federation of America explained that all of the calendars at issue in that case “‘were generated 

within the agenc[y]’ and ‘were prepared on government time, at government expense and with 

government materials, including the . . . appointment calendar[]’ software itself.” Id. at 289 

(quoting Bureau of Nat’l Affairs, 742 F.2d at 1494). The “technologically savvy [agency] 

officials kept their calendars ‘on the [agency’s] computer system, thus necessarily subjecting 

them to the control of that system’s administrators.” Id. at 290 (internal citation omitted). 

Notwithstanding these general characteristics applicable to all of the calendars at issue in 

Consumer Federation of America, the Court of Appeals once again focused on the manner in 

which the calendars were used as the basis for determining whether the calendars were “agency 

records” covered by FOIA. The Court held that officials’ calendars that “were used to ‘better 

communicate about [the officials’] availability, to prevent, among other things, double booking 

of periods of time,’” that were “distributed” to other senior agency staff, and that were “relied 

upon by both their authors and their authors’ colleagues to ‘facilitate[] the day-to-day 

operations’” of the agency, were “agency records” subject to disclosure under FOIA. Id. at 291-

93.2

 

 

2

 Rather than the physical distribution of paper copies of the calendars, electronic 

versions of the calendars were “simply made available on the recipients’ computers.” Consumer 

Fed. of Am., 455 F.3d at 291-92. The Court of Appeals found that any such distinctions in how 

access was provided to calendars were unimportant. Id. 

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The Court distinguished one official’s calendar, “which provide[d] a counterpoint to the 

above analysis.” Id. at 293. Although this official, like his colleagues, also “distributed” his 

calendar “to better communicate about [his] availability,’ he distributed it only to his ‘secretary 

and any temporary secretaries that filled in for [his] permanent secretary.’” Id. Because the 

calendar “was ‘not distributed to other employees,’” and there was no evidence that other 

employees “apart from [the official’s] secretary” relied on the calendar, the Court concluded that 

the calendar was not an agency record. Id. 

As detailed below, the controlling analyses in Consumer Federation of America and

Bureau of National Affairs confirm that the personal calendars maintained by Commissioner 

Hunter, Chairman Petersen, and Vice Chairman Walther are not agency records.

 1. Commissioner Hunter’s Personal Calendar is Not an Agency Record

The FEC properly excluded Commissioner Hunter’s personal calendar book from its 

production of documents responsive to plaintiffs’ FOIA request. Commissioner Hunter 

purchased the book with her own personal funds, maintained it “for her own personal use and 

benefit,” and generally kept in her purse. (Decl. of Caroline C. Hunter ¶ 3, Feb. 11, 2016.) She 

alone used the calendar book to keep track of her personal, social, and professional 

appointments. (Id. ¶¶ 3-4.) No member of her staff or other FEC employee made entries in, 

consulted, or otherwise had access to Commissioner Hunter’s personal calendar book. (Id.¶ 4.) 

Under the totality of the circumstances test, Commissioner Hunter’s personal calendar 

book plainly is not an agency record. See Burka, 87 F.3d at 515; Tax Analysts, 845 F.2d at 1069; 

Consumer Fed’n of Am., 455 F.3d at 287; Bureau of Nat’l Affairs, 742 F.2d at 1487, 1496. By 

purchasing it with her own personal funds and using it exclusively, Commissioner Hunter 

manifestly intended to retain control over it. Burka, 87 F.3d at 515. The Commission does not 

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have any ability to use or dispose of the calendar. Id. No other agency personnel read or made 

any use whatsoever of the scheduling document. Id. The calendar never resided in agency files, 

and it contained scheduling information for Commissioner Hunter alone. Id. The controlling 

analyses in Consumer Federation of America and Bureau of National Affairs make clear that 

Commissioner Hunter’s calendar is a personal record that is not responsive to plaintiffs’ FOIA 

request. Indeed, Commissioner Hunter’s calendar is even more clearly outside the scope of 

FOIA than the scheduling records the Court of Appeals found to be properly withheld in both of 

those cases. See Consumer Fed’n of Am., 455 F.3d at 287-88, 293; Bureau of Nat’l Affairs, 742 

F.2d at 1487, 1496. 

2. Chairman Petersen’s Personal Calendar is Not an Agency Record 

The Commission also properly excluded from its FOIA production the personal calendar 

Chairman Petersen maintained on his personal tablet computer. He purchased the tablet with his 

own personal funds and maintained it for his “own personal use and benefit.” (Decl. of Matthew 

S. Petersen ¶ 3, Feb. 11, 2016.) Chairman Petersen used the electronic calendar to keep track of 

personal, social, and professional appointments. (Id.) He had exclusive access to the calendar; 

no member of his staff or other FEC employee made entries in, consulted, or otherwise had 

access to his personal calendar. (Id. ¶ 4.) 

The totality of the circumstances surrounding the creation, possession, control, and use of 

Chairman Petersen’s calendar similarly confirm that Chairman Petersen’s calendar is not an 

agency record. See Burka, 87 F.3d at 515; Tax Analysts, 845 F.2d at 1069; Consumer Fed’n of 

Am., 455 F.3d at 287 n.7; Bureau of Nat’l Affairs, 742 F.2d at 1487, 1496. Chairman Petersen’s 

disbursement of his own funds and exclusive use confirm his intent to retain control over the 

tablet. Burka, 87 F.3d at 515. The agency has no ability to use or dispose of Commissioner 

Case 1:15-cv-01148-JEB Document 14 Filed 02/12/16 Page 15 of 24
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Petersen’s personal tablet, and other agency personnel do not read or rely upon the tablet. Id.

The tablet is in no manner integrated into the Commission’s record system. Id. Consumer 

Federation of America and Bureau of National Affairs thus similarly confirm that Chairman 

Petersen’s calendar is a personal rather than agency record and not responsive to plaintiffs’ FOIA 

request. And like Commissioner Hunter’s calendar, Chairman Petersen’s calendar is more 

distinctly outside the scope of FOIA than the scheduling records the Court of Appeals declined 

to order released in those two cases. See Consumer Fed’n of Am., 455 F.3d at 288, 293; Bureau 

of Nat’l Affairs, 742 F.2d at 1487, 1496. 

3. Vice Chairman Walther’s Personal Calendar is Not an Agency Record

Finally, the Commission also properly excluded from its FOIA production the personal 

electronic calendar that Vice Chairman Walther maintained on a restricted agency network folder 

for his own “personal use and benefit.” (Decl. of Steven T. Walther ¶ 3, Feb. 11, 2016.) Vice 

Chairman Walther personally used the electronic calendar to keep track of personal and 

professional appointments and travel plans. (Id.) He did not distribute the calendar to FEC staff, 

although one of his two executive assistants accessed the calendar to perform secretarial duties of 

updating and printing the calendar, exclusively at Vice Chairman Walther’s direction, for the 

Commissioner’s own personal use. (Id.) 

The circumstances surrounding the creation, possession, control, and use of Vice 

Chairman Walther’s electronic personal calendar are nearly identical to the circumstances that 

rendered certain scheduling records in Consumer Federation of America and Bureau of National

Affairs outside the scope of FOIA. See Consumer Fed’n of Am., 455 F.3d at 288, 293; Bureau of 

Nat’l Affairs, 742 F.2d at 1487, 1494. Limiting access to his immediate staff and maintaining his 

electronic calendar on a restricted network folder establish that Vice Chairman Walther did not 

Case 1:15-cv-01148-JEB Document 14 Filed 02/12/16 Page 16 of 24
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intend to relinquish control over his calendar. Walther Decl. ¶ 3; Burka, 87 F.3d at 515. The 

agency is not asserting an absolute right to use and dispose of materials in Commissioners’ 

restricted office folders, and only Vice Chairman Walther and his two executive assistants read 

or relied upon the document. (Walther Decl. ¶ 4.) The calendar document is not integrated into 

the rest of the Commission’s record system in any meaningful way. (Id.¶ 3.) 

Courts have consistently found that calendar records in comparable circumstances were 

not agency records. See Consumer Fed’n of Am.,455 F.3d at 293 (concluding that an agency 

official’s sharing of his electronic calendar with his administrative support staff was insufficient 

to render a calendar an agency record); see also, e.g., Judicial Watch, Inc. v. U.S. Secret Serv., 

726 F.3d 208, 220 n.13 (D.C. Cir. 2013) (citing D.C. Circuit’s holding in Consumer Federation 

of America “that an employee’s personal electronic calendar was not an agency record, 

notwithstanding that it was on the agency’s computer system”); Bloomberg, L.P. v. SEC, 357 F. 

Supp. 2d 156, 163-67 (D.D.C. 2004) (concluding that computer calendar, telephone logs, and 

message slips of SEC Chairman, and meeting notes of Chairman’s chief of staff, were personal 

records where they were created for personal use of Chairman or chief of staff, were not 

incorporated into SEC files, and were not under SEC control, even though some records were 

maintained by SEC personnel and were automatically “backed-up” onto SEC computer server). 

Much like the calendars that the Court of Appeals found to be outside the scope of FOIA 

in Consumer Federation of America and Bureau of National Affairs, Vice Chairman Walther’s 

calendar was not “distributed” to agency employees, and access to the calendar was limited to 

the Commissioner’s personal assistants to assist with maintaining and updating the calendar 

solely for Vice Chairman Walther’s use. See Consumer Fed’n of Am., 455 F.3d at 288, 293; 

Case 1:15-cv-01148-JEB Document 14 Filed 02/12/16 Page 17 of 24
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Bureau of Nat’l Affairs, 742 F.2d at 1487, 1496. The personal record is not subject to FOIA and 

was properly withheld from the Commission’s response to plaintiffs’ FOIA request. 

III. THE COMMISSION’S RESPONSE TO PLAINTIFFS’ FOIA REQUEST IS 

COMPLETE 

When a Court determines that an agency has released all non-exempt material responsive 

to a FOIA request, it has “no further judicial function to perform under the FOIA.” Richardson 

v. Dep’t of Justice, 730 F. Supp. 2d 225, 232 (D.D.C. 2010) (quoting Perry v. Block, 684 F.2d 

121, 125 (D.C. Cir. 1982)); Adionser v. Dep’t of Justice, 811 F. Supp. 2d 284, 294 n.11 (D.D.C. 

2011). Because the Commission has fully responded to plaintiffs’ FOIA request and confirmed 

to the plaintiffs that none of the three Commissioners identified by plaintiffs maintains a calendar 

that constitutes an agency record, supra pp.2-3, FOIA provides no further role for the Court. As 

explained above, supra pp. 2-3, plaintiffs are not challenging the adequacy of 

the Commission’s search for responsive records. The Commission is thus entitled to judgment in 

its favor and this case should be dismissed.3

 

 

3

 For similar reasons, the Court may also dismiss this case on jurisdictional grounds. A 

FOIA suit cannot proceed unless the plaintiff can show that an agency has improperly withheld 

agency records. Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 

(1980). Where, as here, the agency establishes that responsive records have been released to the 

requester, the suit may be dismissed on mootness grounds as there is no justiciable case or 

controversy. Voinche v. FBI, 999 F.2d 962, 963 (5th Cir. 1993) (per curiam) (holding that 

plaintiff’s “claim was rendered moot by the FBI’s response to his request.”). See also Tijerina v.

Walters, 821 F.2d 789, 799 (D.C. Cir. 1987) (holding case is moot because “the agency by now 

has released all nonexempt materials the [plaintiffs] seek.”). 

Case 1:15-cv-01148-JEB Document 14 Filed 02/12/16 Page 18 of 24
13

CONCLUSION 

For all the foregoing reasons the Court should grant the Commission’s Motion for 

Summary Judgment and dismiss plaintiffs’ complaint. 

 Respectfully submitted, 

Daniel A. Petalas (D.C. Bar No. 467908) 

Acting General Counsel 

dpetalas@fec.gov 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Deputy General Counsel — Law 

lstevenson@fec.gov 

Kevin Deeley 

Acting Associate General Counsel 

kdeeley@fec.gov 

Erin Chlopak (D.C. Bar No. 496370) 

Acting Assistant General Counsel 

echlopak@fec.gov 

/s/ Greg J. Mueller 

Greg J. Mueller (D.C. Bar No. 462840) 

Attorney 

gmueller@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

(202) 694-1650 

February 12, 2016 

Case 1:15-cv-01148-JEB Document 14 Filed 02/12/16 Page 19 of 24
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

DAVE LEVINTHAL, et al., ) 

 ) 

 Plaintiffs, ) Civ. No. 15-1148 (JEB) 

 ) 

 ) 

 v. ) 

 ) 

 ) STATEMENT OF 

FEDERAL ELECTION COMMISSION, ) MATERIAL FACTS 

 ) 

 Defendant. ) 

 ) 

 DEFENDANT FEDERAL ELECTION COMMISSION’S 

STATEMENT OF MATERIAL FACTS AS TO 

WHICH THERE IS NO GENUINE DISPUTE 

Pursuant to Federal Rule of Civil Procedure 56(c) and Local Civil Rule 7(h)(1), the 

Federal Election Commission (“FEC”) submits the following Statement of Material Facts as to 

Which There is No Genuine Dispute: 

1. The FEC is the independent agency of the United States government with 

exclusive jurisdiction over the administration, interpretation, and civil enforcement of the 

Federal Election Campaign Act (“FECA”), 52 U.S.C. §§ 30101-30146. 

2. Pursuant to the Freedom of Information Act (“FOIA”), plaintiffs Dave Levinthal 

and the Center for Public Integrity requested of the FEC: 

all scheduling documents and/or records — be them in paper or electronic 

form — used by FEC commissioners. Such documents should include, 

but not be limited to, calendars, schedules, emails, and itineraries that list 

or account for commissioners’ meetings, whereabouts or travels when 

conducting government business or traveling to/from engagements or 

duties involving government business. 

Case 1:15-cv-01148-JEB Document 14 Filed 02/12/16 Page 20 of 24
2

(Decl. of Katie A. Higginbothom ¶ 2, Feb. 10, 2016; see also Compl. ¶ 8.) Plaintiffs’ FOIA 

request sought the above-described documents within the timeframe October 21, 2013 through 

August 14, 2014. (Higginbothom Decl. ¶ 2; Compl. ¶ 8.) 

3. The Commission complied with plaintiffs’ FOIA request, releasing a total of 1100 

pages of non-exempt, responsive Commissioner scheduling documents, or the non-exempt 

portions of such scheduling documents. The Commission completed its production of all nonexempt documents and non-exempt portions of documents responsive to the FOIA request on 

October 14, 2015. (Higginbothom Decl. ¶ 8.) 

4. On July 20, 2015, after the Commission had produced one batch of non-exempt, 

responsive agency records, plaintiffs filed this FOIA action. The Commission completed its 

production of non-exempt responsive FEC records a few months later. Plaintiffs’ complaint 

asked the Court, inter alia, to order the Commission “to make the requested records available to 

the Plaintiffs.” (Compl. Demand for Relief ¶ 3.) 

5. Between October and December 2015, the parties worked together to identify and 

narrow the scope of any questions the plaintiffs had regarding the Commission’s response to 

their FOIA request. (Decl. of Greg J. Mueller ¶ 5, Feb. 11, 2016.) During that time, the FEC 

confirmed, in response to the plaintiffs’ specific inquiry, that “[n]either Commissioner Hunter, 

nor Commissioner Walther, nor Vice Chair Petersen maintains a calendar that constitutes an 

agency record subject to FOIA.” (Mueller Decl. ¶ 6 & Exh. A (Letter from Greg J. Mueller to 

Peter Newbatt Smith (Dec. 4, 2015)).) 

6. The parties resolved most of the disputed issues related to the plaintiffs’ FOIA 

request during their Fall 2015 negotiations. (Mueller Decl. ¶ 7.) On December 10, 2015, 

counsel for the plaintiffs clarified that plaintiffs are seeking judicial review of only one 

Case 1:15-cv-01148-JEB Document 14 Filed 02/12/16 Page 21 of 24
3

remaining issue in this case: whether the Commission improperly withheld any calendars or 

other “scheduling information” that are used by Commissioner Hunter, Chairman Petersen, or 

Vice Chairman Walther and qualify as “agency records.” (Mueller Decl. ¶ 7 & Exh. B (Email 

from Peter Newbatt Smith to Greg J. Mueller (Dec. 10, 2015)).) Plaintiffs’ counsel further 

clarified that the plaintiffs “will not seek judicial review” concerning other aspects of the 

Commission’s FOIA response, and proposed that the parties’ summary-judgment briefing should 

be “limited to responsive records concerning those three commissioners.” (Mueller Decl. Exh. 

B.) 

 7. Commissioner Hunter did not maintain an office calendar during the time period 

covered by plaintiffs’ FOIA request. (Decl. of Caroline C. Hunter ¶ 5, Feb. 11, 2016.) 

8. Commissioner Hunter did maintain a personal calendar book, which is not an 

FEC record. Commissioner Hunter purchased the calendar book with her own personal funds, 

maintained it for her own personal use and benefit, and generally kept it in her purse. (Hunter 

Decl. ¶ 3.) Commissioner Hunter alone used the calendar book to keep track of her personal, 

social, and professional appointments. (Id. ¶ 3.) No member of her staff or other FEC employee 

made entries in, consulted, or otherwise had access to Commissioner Hunter’s personal calendar 

book. (Id. ¶ 4.) 

9. During the relevant time period, Commissioner Hunter occasionally received 

notifications of internal meetings through the FEC’s Lotus Notes software but she otherwise 

made no use of any calendar functions of that software. (Hunter Decl. ¶ 5.) 

10. Chairman Petersen did not maintain an office calendar during the time period 

covered by plaintiffs’ FOIA request. (Decl. of Matthew S. Petersen ¶ 5, Feb. 11, 2016.) 

Case 1:15-cv-01148-JEB Document 14 Filed 02/12/16 Page 22 of 24
4

11. Chairman Petersen did maintain a personal tablet computer that contained a 

personal calendar, which is not an FEC record. Chairman Petersen purchased the tablet with his 

own personal funds and maintained it for his own personal use and benefit. (Petersen Decl. ¶ 3.) 

Chairman Petersen used the electronic calendar on his tablet to keep track of personal, social, 

and professional appointments. (Id. ¶ 3.) He had exclusive access to the calendar; no member of 

his staff or other FEC employee made entries in, consulted, or otherwise had access to his 

personal calendar. (Id. ¶ 4.) 

12. During the relevant time period, Chairman Petersen occasionally received 

notifications of internal meetings through the FEC’s Lotus Notes software but he otherwise made 

no use of any calendar functions of that software. (Petersen Decl. ¶ 5.) 

13. During the time period covered by plaintiffs’ FOIA request, Vice Chairman 

Walther maintained a personal office calendar for his own personal use and benefit. (Decl. of 

Steven T. Walther ¶ 3, Feb. 11, 2016.) Vice Chairman Walther personally used the electronic 

calendar to keep track of personal and professional appointments and travel plans. (Id.) He 

maintained the calendar in a restricted folder on an FEC server that is designed for exclusive use 

by Vice Chairman Walther and his immediate personal staff. (Id.) Other than potential 

maintenance work by network administrators from the FEC’s information technology staff, the 

only people who had access to the restricted folder — including Vice Chairman Walther’s 

personal calendar — during the relevant time period were Vice Chairman Walther and the two 

executive assistants that worked for him during that time period. (Id.) One of Vice Chairman 

Walther’s two executive assistants previously performed the secretarial duties of periodically 

updating and printing the calendar for his personal use, at his direction, which duties amounted 

to no more than a few minutes per month. (Id.) Printed copies of the calendar, if any, were 

Case 1:15-cv-01148-JEB Document 14 Filed 02/12/16 Page 23 of 24
5

maintained in a bookshelf outside Vice Chairman Walther’s individual office door within the 

three-room suite of offices for his staff. (Id.) Any such paper copies were destroyed at the end 

of each month. (Id.) No one outside of Vice Chairman Walther’s personal staff accessed or 

consulted the electronic or print version of the calendar in order to avoid scheduling conflicts, or 

for any other purpose. (Id.) 

14. During the relevant time period, Vice Chairman Walther occasionally received 

notifications of internal meetings through the agency’s Lotus Notes software but he otherwise 

made no use of any calendar functions of that software. (Walther Decl. ¶ 5.) The FEC’s Lotus 

Notes email and calendar software is completely independent of Vice Chairman Walther’s 

personal calendar and was not used to populate any entries in that calendar. (Id.) 

15. The FEC has fully responded to plaintiffs’ FOIA request. Neither Commissioner 

Hunter, nor Vice Chairman Walther, nor Chairman Petersen maintains a calendar that constitutes 

an agency record. 

 Respectfully submitted, 

Daniel A. Petalas (D.C. Bar No. 467908) 

Acting General Counsel 

dpetalas@fec.gov 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Deputy General Counsel — Law 

lstevenson@fec.gov 

Kevin Deeley 

Acting Associate General Counsel 

kdeeley@fec.gov 

Erin Chlopak (D.C. Bar No. 496370) 

Acting Assistant General Counsel 

echlopak@fec.gov 

/s/ Greg J. Mueller 

Greg J. Mueller (D.C. Bar No. 462840) 

Attorney 

gmueller@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

(202) 694-1650 

Case 1:15-cv-01148-JEB Document 14 Filed 02/12/16 Page 24 of 24