Congressional Request for Appointment Calendars of a Former GSA Official ( 1990 )

Congressional Request For Appointment Calendars of a
Former GSA Official
U n d er G eneral Services A dm inistration records retention regulations, the appointm ent calendars
o f current and form er GSA officials are personal records and personal property, rather than
official reco rd s and government property. Accordingly, under the facts presented, the G SA
sho u ld retu rn a form er GSA o fficial’s calendars to him . T he form er official, not the G SA , is
resp o n sib le fo r responding to a congressional com m ittee’s request for the calendars.
February 15, 1990
M em orandum O p in io n fo r t h e G eneral Cou n sel
G eneral S e r v ic e s A d m in is t r a t io n
You have asked for our opinion as to whether, for purposes of an over­
sight request received from the Senate Committee on Governmental Affairs
(“the Committee”), the appointment calendars of a former official of the
General Services Administration (“GSA”) are government property or the
official’s personal property. As discussed below, we have concluded that in
these circumstances the calendars are the official’s personal property and
should be returned to the official.1
I. Statement o f Facts
On September 15, 1989, GSA accepted the resignation of a high-level
official (“the former official”).2 The former official promptly began his
departure activities, including consideration of the disposition of his files,
records and other papers. At his request, his secretary, who had maintained
his appointment calendars for him at her desk, delivered them to him so that
. he could take them with him.
Subsequently, by letter dated September 26, 1989, the Committee re­
quested that GSA provide the Committee with certain specified information
and documents, including the former official’s appointment calendars. An
agency official then asked the former official for the calendars so that GSA
could produce them to the Committee. The former official complied with the
1In light of this conclusion, it is not necessary for us to address the question you raised as to the
p otential personal liability o f agency officials who participate in a decision to produce the calendars to
the Com m ittee.
2T his statem ent o f facts is based on the inform ation presented to this Office in your letter o f October 24,
1989 and orally by your staff.
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request and supplied the calendars to the GSA official. Before GSA had
produced the calendars to the Committee, however, the former official, by
means of an October 12, 1989 letter from his attorney, requested that the
calendars be returned to him. In the letter he also objected to GSA produc­
ing the calendars to the Committee, on the grounds that the calendars were
his personal property and disclosure to Congress in these circumstances would
violate his rights.
After receiving the former official’s letter, GSA advised the Committee
that it was withholding the calendars pending review by GSA and this Office
of the former official’s position.
II. Discussion
The question presented is whether the former official’s appointment cal­
endars should be treated as government property or personal property for
purposes of the Committee’s oversight request. More specifically, the ques­
tion is whether on September 26, 1989 — the date the Committee requested
the calendars — they were government property (with respect to which GSA
was responsible for responding to the Committee) or the former official’s
personal property (with respect to which the former official was responsible
for responding to the Committee).
Under GSA’s records retention regulations, only “official records”
(as defined in the regulations) are government property: “All Federal em­
ployees must understand that official records belong to the Government, not
to any individual . . . ” GSA Order entitled “GSA Records Maintenance
and Disposition System,” Order OADP1820.2CHGE76, ch. 2, § 1 (Aug. 12,
1985). The section of the regulations entitled “Distinction between official
and personal records” makes it clear that appointment calendars are personal
records rather than official records:
Personal calendars, appointment books, schedules, and diaries
showing meetings, appointments, trips, and other activities of
a high-level official solely for the convenience of the high-
level official in managing his or her time are personal records.
Documents such as these may be disposed of at the discretion
of the official.
Id., ch. 2, § 4(b)(3).
Thus, the appointment calendars of high-level GSA officials are not gov­
ernment property. Rather, they are “personal records . . . [that] may be
disposed of at the discretion of the official.” Id. In our view, the actions the
former official took, prior to the Committee’s request, to dispose o f the
calendars by taking them with him when he departed the agency clearly
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constituted the exercise of the official’s right under the GSA regulations to
treat the calendars as personal property and dispose of them as he wishes.
We therefore conclude that at the time the Committee requested the cal­
endars they were the personal property of the former official and not
government property. Accordingly, in these circumstances the former offi­
cial and not GSA is responsible for responding to the Committee’s request
for the calendars. They should be returned to the former official.3
LYNDA GUILD SIMPSON
Deputy Assistant Attorney General
Office o f Legal Counsel
5 T hese conclusions are unaffected by the fact that after the Com m ittee’s request was received the
form er official supplied the calendars to the agency for production to the Committee. The calendars
w ere his personal property at the time o f the request, and any apparent consent to perm it GSA to
produce the calendars to the Committee w as clearly retracted by the October 12, 1989 letter from the
o fficial’s attorney.
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