Public Citizen v. Lew, DDC 97-2891 Plaintiff's Motion for Summary Judgment With Respect to the Office of Administration and the Department of Energy, and Request for Reconsideration.

Original document created: 2001/1/19

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

PUBLIC CITIZEN, INC., ) ) Plaintiff, ) ) Civil Action v. ) No. 97-2891 SSH ) JACOB J. LEW, et al., ) ) Defendants. )

MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
WITH RESPECT TO THEOFFICE OF ADMINISTRATION AND THE
DEPARTMENT OF ENERGY, AND REQUEST FOR RECONSIDERATION

Introduction

On December 11, 2000, this Court issued an Opinion and Order that addressed cross- motions for summary judgment filed by the parties between July 1998 and January 2000. This Court found, among other things, that summary judgment should be entered against five of the defendant agencies on plaintiff's claims under the Freedom of Information Act, 5 U.S.C. § 552(b) (“FOIA”) and the Paperwork Reduction Act, 44 U.S.C. § 3506(b)(4) (“PRA”) because the undisputed facts showed that these agencies had misconstrued and misapplied the definition of “major information systems” in various respects. See Opinion at 31, 40. The Court's ruling, however, did not constitute a final judgment because the Court concluded that the factual record was not adequate to determine whether the Office of Administration (“OA”) and the Department of Energy (“DoE”) had made similar errors in determining what information systems should be included in the indices and descriptions required by 5 U.S.C. § 552(g). Id. at 23-26.

Plaintiff now moves for a final judgment that includes summary judgment against these two agencies for failing to compile the index and description of “major information systems” required by the FOIA and by OMB's interpretation of the PRA. Application of the standards set forth in the December 11, 2000, Opinion to these two agencies shows that, like the other five agency defendants, these agencies have omitted from their inventories information systems that qualify as “major” under the governing definition.

In particular, OA has misstated the definition by failing to include all three prongs of the definition. Moreover, the evidence shows that a number of systems that qualify under the prong that OA has omitted have not been included in OA's remarkably brief inventory. Similarly, the evidence shows that the DoE's inventory excludes a significant number of record systems that qualify as “major.” Although the evidence may not be sufficient to resolve whether DoE excluded these systems based on a categorical rule, the undisputed evidence establishes that DoE's inventory is incomplete because it omits not just one, but many, information systems that qualify as “major.” Finally, summary judgment is also appropriate against these agencies because neither has advanced an explanation for the omissions in their inventories. Where, as here, an agency has failed to “adequately explain” the distinctions that it has made, its action should be reversed as arbitrary and capricious. See D & F Afonso Realty Trust v. Garvey, 216 F.3d 1191, 1195 (D.C. Cir. 2000); Dickson v. Secretary of Defense, 68 F.3d 1396, 1404 (D.C. Cir. 1995).

In addition, the Court's December 11, 2000 Opinion rejects plaintiff's claim that the defendant agencies have failed to comply with Section 3506(b)(4) of the Paperwork Reduction Act (“PRA”) insofar as plaintiff contends that the PRA's mandate is not limited to “major” information systems. Opinion at 31-40. In doing so, this Court concluded that statements in an agency declaration prepared specifically for this litigation, the Supplemental Arbuckle Declaration, are entitled to deference under Chevron v. National Resources Defense Council, 467 U.S. 837 (1984), even though the interpretation in the declaration “is not set forth in a formal regulation or rule.” Opinion at 38.

Plaintiffs request that the Court reconsider this decision in light of the Supreme Court's recent decision in Christensen v. Harris County, 120 S.Ct. 1655 (2000). In that decision, the Supreme Court held that Chevron deference is only appropriate for agency interpretations that are promulgated in rules, adjudicatory decisions or other law-making pronouncements. Interpretations articulated in other contexts, such as opinion letters or manuals, should be given weight only to the extent that they “have the 'power to persuade.'” 120 U.S. at 1663 (quoting EEOC v. Arabian American Oil Co., 499 U.S. 244, 256-58 (1991)). We submit that under this standard, OMB's interpretation is not persuasive, and the more reasonable construction of the PRA is that it requires that agencies maintain a “current and complete” inventory of their information systems -- not an inventory that is limited to “major” systems.


ARGUMENT

I.    SUMMARY JUDGMENT SHOULD BE ENTERED AGAINST THE OFFICE OF ADMINISTRATION AND THE DEPARTMENT OF ENERGY ON PLAINTIFF'S CLAIM THAT THESE AGENCIES HAVE FAILED TO COMPILE A COMPLETE INVENTORY OF THEIR MAJOR INFORMATION SYSTEMS, AS REQUIRED BY 5 U.S.C. § 552(g) AND 44 U.S.C. § 3506(b)(4).

As described in the December 11, 2000 Opinion, this action seeks to enforce the mandates in the 1996 Amendments to the FOIA which require each agency to make publicly available "an index of all major information systems of the agency" and "a description of major information and record locator systems maintained by the agency." 5 U.S.C. § 552(g). All parties agree that the “major information systems” covered by this requirement are those that fall within the definition set forth in OMB Circular A-130:

The term "major information system" means an information system that requires special management attention because of [1] its importance to an agency mission; [2] its high development, operating, or maintenance costs; or [3] its significant role in the administration of agency programs, finances, property, or other resources. 6 1 Fed. Reg. at 6431. An agency violates its obligations under this statute when it fails to include systems that qualify as “major” under this definition in the index that the agency makes available to the public. See Opinion at 31.

This Court declined to enter summary judgment against OA and DoE because the evidence that these agencies had “categorically excluded manual systems” was not conclusive. Opinion at 24, 25. As we show below, there is undisputed evidence that these agencies have omitted from their indices information systems that, according to the agency's own descriptions, fall within Circular A-130's definition of major systems. Moreover, neither agency has articulated a basis for excluding these systems from its indices. Accordingly, summary judgment does not depend upon whether the agencies acknowledge a categorical exclusion. Summary judgment is appropriate because the agency's inventories are incomplete, and the agencies' unexplained omission of certain information systems is “arbitrary and capricious.”

A.    The OA Has Applied An Incomplete Definition of “Major Information Systems” and Its Inventory Does Not Include Systems That Are Important To The Agency's Mission.

OA's index of major information systems is remarkably short; it only includes five systems, all of which are automated. See Exhibit 1, “Index and Description of the Office of Administration's Major Information Systems,” available at http://www.whitehouse.gov/oa/foia/systems.html (accessed Jan. 18, 2001). The agency's declaration explaining its conclusion that only five systems qualify as “major,” and none of its manual records qualify, states that other systems were excluded from the index because:

They do not require special management attention, were not expensive to develop, operate or maintain, and do not play a significant role in the administration of agency programs, finances, property or other resources. Exhibit 3, Supplemental Declaration of Kathleen K. Gallant ¶ 10.

This explanation for excluding systems misstates the definition of “major information systems,” as this Court noted in its December 11, 2000, Opinion. See Opinion at 24, n.12. A system qualifies as “major” under Circular A-130 if it requires special management attention because of its “importance to an agency mission” or its high costs or “its significant role in the administration of agency programs, finances, property, or other resources.” Opinion at 17-18. Just as the Office of Management and Budget (“OMB”) erred by excluding systems unless they satisfied the second prong of the definition, see id., OA's explanation for excluding systems shows that it has erred. In particular, OA's statement fails to recognize that systems that require special management attention because of their “importance to an agency mission” must be included in the index of “major information systems.”

The undisputed evidence also reveals that several systems that document how OA performs its mission are missing from OA's index. The mission of the Office of Administration is to provide “administrative support services to all units within the Executive Office of the President.” The United States Government Manual, 2000/2001, at 95; Exhibit 4, Office of Administration Mission Statement and Background in Fiscal Year 1990 Congressional Budget Submission for the Executive Office of the President. These services include “facilities and financial management services; general administrative services support; human resources management; information management; and library and records management services.” Exhibit 4 at 95; see also Exec. Order 12,028, reprinted at 3 U.S.C. § 101 note. The OA's record schedules demonstrate that it maintains the following systems of records that are directly related to this mission:

  1. 1.     Director's Files. The OA is headed by a Director, who reports directly to the President. Exec. Order 12,028, § 2. The Director's files are “related to the Director's role as Special Assistant to the President for Information Management, and include correspondence, memorandum, and background information related to information management.” Exhibit 5, OA Record Schedule No. NC1-429-79-2, at 3.
  2. 2.      Deputy Director's Files. The OA has Deputy Directors responsible for its principal support functions, for example, a Director for Information Systems and Technology, a Director for Facilities Management, a Director of Financial Management, and a Director for Human Resources. See The United States Government Manual, 2000/2001, at 95-96 (listing Deputy Directors and setting forth organizational chart). The Deputy Directors' subject files document the activities of the divisions of OA that provide services to all entities within the Executive Office of the President, including direct support to the President and his staff. See Exhibit 4, at 73-74. OA describes these files as records that “relate to the major functions, policy decisions and administrative management activities of the Office of Administration (i.e., organizational planning, direction and control of substantive operations and programs, development and simplification of procedures, and administration of management improvement programs).” Exhibit 5, at 3. More specifically, “[t]hese files include, but are not limited to: Statutes and Executive Orders establishing the Office of Administration; organizational charts; directives; manuals, and handbooks; master set of publications; master set of forms; management improvement reports; delegation of authority; and the Annual Report to the President.” Id.
  3. 3.      Budget Policy Files. The OA has an annual budget of approximately $40 million and performs the financial management for eleven other components of the Executive Office of the President. See Public Law No. 106-58, Title III, 113 Stat. 430, 447 (1999). The OA's budget files contain “policy and allowance letters and other materials documenting policy and procedures governing budget administration, and reflecting policy decisions affections expenditures for programs.” Exhibit 5 at 3.
  4. 4.      Budget Estimates and Justification Files. The services provided by OA include formulating the budgets for each component of the Executive Office of the President. See Exhibit 4, at 73. Its files on these activities include “budget estimates and justifications”, “appropriation language sheets, narrative statements, and related schedules and data.” Exhibit 5 at 3.

These records systems should be included in OA's list of major information systems, but none of them are. Each of these record systems are important to the mission and programs of the OA described in Executive Order 12,028 and the OA's own description of its responsibilities. See Exhibit 4, at 73-77. In addition, the budget records and files documenting the Deputy Directors' activities in financial management, security and related matters also fall within the A-130 definition because such materials play a "significant role in the administration of agency programs, finances, property, or other resources."

OA's omission of these systems cannot be dismissed as a minor defect or technicality. It is vital that the indices required by 5 U.S.C. § 552(g) include the systems of records that document how an agency performs its mission and carries out its major programs. In the 1996 Amendments to the FOIA, Congress recognized that requests under the FOIA are valuable because they allow the public to “learn how the Federal Government operates,” and have “led to the disclosure of waste, fraud, abuse and wrongdoing in the Federal Government.” Pub. L. No. 104-231,110 Stat. 2422 § 2(a)(2), (3), Findings and Purposes. Congress added Section 552(g)'s mandate that agencies provide the public with indices and descriptions of major information systems because it recognized that, without such descriptions, it will often be difficult for the public to identify and request such records. However, if an agency's index omits key record systems concerning its mission and programs -- as OA has done here -- Congress' objective of facilitating access to such records will be thwarted.

Although the Director's and Deputy Directors' files have been designated “permanent records,” plaintiff's contention that these systems qualify as “major information systems” does not rely on this designation. This Court's Opinion acknowledges that permanent records may also be major information system. Opinion at 14-15. Indeed, “the presence of multiple permanent records within an information system may provide evidence that the system should be designated as 'major.'” Opinion at 15. Independent of the “permanent” designation, the OA's own description of these record systems shows that they have value to the government because they chronicle how OA performs its mission, and play a significant role in the agency's programs. Because OA has failed to include such records in its inventory, summary judgment should be entered against the agency.

B.    The Undisputed Evidence Shows That The Department of Energy's Inventory Does Not Include Numerous Systems That Fall Within The Definition of “Major Information Systems”

The DoE did not have any index of major information systems when this litigation began, but in February 1999 it belatedly compiled a list that it calls its “Major Information Systems.” See Exhibit 6, available at http://vm1.hqadmin.doe.gov/es/infosrcs.htm (accessed Jan. 18, 2001); Landon Dep. at 19:18-20:11. All of the systems identified in this list are automated, and the official who compiled the list, Mr. Howard Landon, could not recall whether the agency ever examined any nonautomated systems to determine if they qualify as "major." Landon Dep. at 37:19-22, 62:21-63:6. In the December 11, 2000, Opinion, this Court concluded that Mr. Landon's ambiguous testimony created an issue of fact as to whether DoE actually failed to consider whether manual systems qualified as “major information systems” and the information concerning the one example cited, DoE's litigation files, is not sufficient to determine whether this system was improperly omitted without “a more specific description of the case files in this system and the agency programs they purportedly effect.” Opinion at 25.

However, it is not necessary to resolve whether manual record systems were considered in order to resolve whether DoE's index is incomplete. A more detailed review of DoE's information systems shows that the significant litigation files are just one of many prominent systems of records that have been omitted from the DoE's index. Moreover, the description of the DoE's programs set forth in the Department's Strategic Plan demonstrates that these systems qualify as “major information systems” under Circular A-130.

The DoE was created in 1977, and assumed functions formerly performed by the Energy Research and Development Administration (and its predecessor, the Atomic Energy Commission), the Federal Energy Administration, the Federal Power Commission, and the Power Marketing Administrations. See 42 U.S.C. 7131-7382f. DoE categorizes its responsibilities in terms of four “programmatic business lines”: (i) energy resources; (ii) national nuclear security; (iii) environmental quality; (iv) advancing science and scientific tools. U.S. Department Of Energy Strategic Plan, 1 (Sept. 2000), available at http://www.cfo.doe.gov/stratmgt/plan/DOE-SP-full2.pdf. Detailed examination of DoE's record schedules demonstrates that DoE has omitted many prominent systems of manual records that relate to these programs from the index that the agency releases to the public. The examples described below are not exhaustive, but are sufficient to demonstrate that DoE's index is far from complete.

  1. 1.     Nuclear Security Records. DoE is responsible for maintaining the safety, security, and reliability of the U.S. nuclear weapons stockpile; ensuring that military nuclear propulsion plants operate effectively and reliably; and implementing major international nuclear nonproliferation programs. See Strategic Plan at 35. Among the record systems that DoE maintains that are not included in its index of major systems are:
    1. A system of records containing “reports of apparent losses of source or nuclear material” including “[c]ases which are of widespread public, governmental or congressional interest.” Exhibit 8, DOE Records Schedule 5, Special Material Accountability Records, ¶ 5.
    2. Strategic studies on matters such as “[s]trategic offense and defense, arms control, conventional and tactical weapons studies.” Exhibit 7, DOE Records Schedule 3, Nuclear Weapons Records, ¶ 1.E.
    3. Nuclear weapon development reports, including the files of committees and review groups “and study groups that address overarching topics, such as, nuclear weapons systems development and safety.” Id., Nuclear Weapons Records, ¶ 2.G.
    4. Records on the “surety” of nuclear weapons systems, including reports on “the safety, security, and use control aspects of nuclear weapon systems, nuclear weapons, nuclear weapon components, and their associated technologies.” Id., Nuclear Weapons Records, ¶ 5.A.
    5. A system of records that contains “[f]ormal DOE reports associated with accidents or incidents involving nuclear explosives or weapons.” Id., Nuclear Weapons Records, ¶ 5.D.
  2. 2.     Environmental Hazards. DoE is responsible for “cleaning up the legacy of nuclear weapons and nuclear research activities, safely managing nuclear materials, and disposing of radioactive wastes.” Strategic Plan at 1. The agency is responsible for the cleanup of 113 sites that collectively “encompass an area of over two million acres -- equal to the size of Rhode Island and Delaware combined.” Id. at 59. As a result, the agency generates an impressive number of systems of records on environmental assessments and cleanup, such as:
    1. The administrative records that document the basis for selecting a particular response or remediation action for "Superfund" sites. These files include public comments on the remedial action, the "remedial investigation/feasibility study (RI/FS) work plan, guidance documents, proposed plan, public notices, record of decision (ROD), explanation of significant differences, permit application, corrective measures study report, interim response action proposal, applicable NEPA documentation, and all other decision documents available for public comment and use." Exhibit 10, Draft DOE Records Schedule for Environmental Records ¶ 1.a (March 1999).
    2. Environmental permit files, including "storage site permits and detailed oversight compliance inspection forms documenting findings of deficiencies and corrective acts." Exhibit 11, NARA Memorandum re: Draft Records Schedule No. N1-434-98-28, at 9.
    3. "Waste Disposal Records" that indicate the "type (classification) and degree of contamination, date of disposal, method of disposal (burial, landfill, etc.), volume, and disposal location." Id. at 11. These records include "reports of unusual problems encountered during removal or treatment" and describe "what was deposited, how much, and where the cleanup took place." Id. at 11-12.
  3. 3.     Patents. DoE also sponsors an enormous amount of scientific research related to energy technologies, conservation, and particle physics. Indeed, DoE is the third largest government sponsor of basic research. Strategic Plan at 75. Its enabling legislation includes special provisions that vest ownership of the certain patents developed under the agency's programs in the United States. See 42 U.S.C. §§ 2182, 2186, 5908. DoE has several systems of files related to its patents and inventions, and the licensing of this technology. See Exhibit 9, DOE Records Schedule 7, Legal Records, ¶¶ 1-7. DoE is also responsible for implementing statutes that prohibit the acquisition of a patent for an invention that is useful solely for nuclear energy or weapons. 42 U.S.C. § 2181. DoE maintains a record system for the files regarding this function. See Exhibit 11, DOE Records Schedule 7, Legal Records, ¶ 8.

These record systems qualify as “major information systems” under Circular A-130. The environmental and patent records unquestionably have a “significant role in the administration of agency programs, finances, property, or other resources,” which requires special management attention. The nuclear security records directly document how DoE carries-out one of its principal statutory missions and, therefore qualify as “major information systems” because of their “importance to an agency mission.” Indeed, these are precisely the type of systems that Congress contemplated should be disclosed to the public so that records of agency activities are more readily identified and available under the FOIA.

Because the undisputed evidence shows that DoE has not listed these records systems in its description of “major information system,” summary judgment should be entered against the agency. These records may have been omitted because DoE failed to review its manual record systems to determine if they should be included; or because the agency misconstrued the language of Circular A-130; or because the agency only undertook a cursory inventory when it compiled its description. Regardless of the underlying cause for the deficiency, DoE's list is incomplete, and the agency should be compelled to comply with the statute.

C.    Summary Judgment Should Be Entered Against OA and DoE Because They Have Failed To Provide Any Reasonable Explanation for the Exclusion of Record Systems From Their Indices.

Summary judgment is also appropriate here because the agencies have failed to provide any reasonable explanations for omitting records systems that appear to qualify as “major” from their FOIA indices. This Court's December 11, 2000, Opinion ruled that the agency's actions here should be reviewed under the arbitrary and capricious standard of the APA. Opinion at 7. “'The requirement that agency action not be arbitrary or capricious includes a requirement that the agency adequately explain its result.'” Dickson v. Secretary of Defense, 68 F.3d 1396, 1404 (D.C. Cir. 1995) (quoting Public Citizen v. FAA, 988 F.2d 186, 197 (D.C. Cir. 1998)). “When an agency merely parrots the language of a statute without providing an account of how it reached its results, it has not adequately explained the basis for its decision.” Dickson, 68 F.3d at 1405. If the agency has provided only conclusory assertions, rather than a reasoned explanation, its action must be set aside. Id. at 1407; accord Just v. Surface Transportation Board, 194 F.3d 79, 85 (D.C. Cir. 1999); Petroleum Communications, Inc. v. FCC, 22 F.3d 1164, 1172 (D.C. Cir. 1994).

The explanations advanced by OA and DoE do not provide the “reasoned explanation” required by the “arbitrary and capricious” standard. OA's statement of the basis for its index is set forth in the Gallant Declarations. See Exhibits 2 and 3. As this Court observed, the basis that Ms. Gallant gives for excluding systems from OA's index misstates the definition in Circular A-130. See Opinion at 24; see supra at 5. DoE's explanation is set forth in the deposition of Howard Landon, the official who supervised the creation of DoE's list of major information systems.1 Mr. Landon's answers were inconsistent and contain no coherent explanation for the limitations reflected in DoE's index. We submit that, at best, Mr. Landon's answers indicate that he could not recall whether systems were considered by the DoE and, if they were considered, why they were excluded. See Landon Dep. at 32:13-33:9, 35:12-36:19, 37:11-22, 62:21-63:6, 69:14-70:1. DoE and OA cannot, from the Gallant or Landon testimony, show that their FOIA indices are based on a reasonable application of Circular A-130's definition of “major information systems.” In particular, neither agency's explanation demonstrates that the agency reviewed all of the information systems that might qualify, and included systems that qualify under any of the three prongs of the definition in OMB Circular A-130.

Moreover, neither agency can substitute new explanations for the explanations already set forth in the Gallant and Landon testimony. Under the arbitrary and capricious standard, an agency's action must be upheld, if at all, based on the explanation articulated by the agency. See Algonquin Gas Trans. Co. v. FERC, 948 F.2d 1305, 1312 n.12 (D.C. Cir. 1991) (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)). Agencies are not permitted to replace their initial explanations with revised statements that seek to retroactively correct errors.2

Where, as here, the explanations articulated by the agency are either conclusory, perfunctory, or misstate the applicable standards, the APA provides that the agency's action should be set aside, and the agency directed to reexamine its actions in light of the standards set forth in the Court's opinion. See, e.g., D& F Afonso Realty, 216 F.3d at 1195-97; United States Telecommunications Ass'n v. FCC, 227 F.3d 450, 460 (D.C. Cir. 2000). Because the agencies' explanations of their actions fail to articulate a reasoned basis, summary judgment should be entered against the agencies.


II.    THE COURT SHOULD RECONSIDER ITS RULING ON THE SCOPE OF AGENCIES OBLIGATIONS UNDER PRA SECTION 3506(b)(5) IN LIGHT OF CHRISTENSEN V. HARRIS COUNTY.

In the December 11, 2000, Opinion, this Court concluded that Section 3506(b)(4) of the Paperwork Reduction Act is susceptible to “two plausible readings.” Opinion at 35. The Court accepted the reading of the statute advocated by OMB, not because this second reading was more reasonable, but because the Court concluded that the Supplemental Arbuckle Declaration was an agency interpretation entitled to Chevron deference. Opinion at 39. The Court afforded deference to the statements in the Supplemental Declaration “even though [this interpretation] is not set forth in a formal regulation or rule.” Id. at 38.

The Court should reconsider this ruling in light of the Supreme Court's recent opinion Christensen v. Harris County, 120 S.Ct. 1655 (2000). In Christensen, the Court made clear that Chevron deference is limited to agency interpretations of statutes that are promulgated in proceedings such as formal adjudication or notice-and-comment rulemaking. Id. at 1662. Agency statements that “lack the force of law” “do not warrant Chevron style deference.” Id. Instead, such agency statements are “'entitled to respect' under our decision in Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944), but only to the extent that those interpretations have 'power to persuade.'” Id. at 1663. Under Christensen, the Supplemental Arbuckle regulation -- which is not part of any agency procedure for declaring legal rules -- is not an agency interpretation entitled to Chevron deference. See District of Columbia Hospital Association v. District of Columbia, 224 F.3d 776, 780 (D.C. Cir. 2000) (rejecting argument that opinion of agency counsel would be entitled to deference, citing Christensen); Bussian v. RJR Nabisco, Inc., 223 F.3d 286, 296-98 (5th Cir. 2000) (interpretive bulletin is not entitled to deference under Christensen and court is not persuaded by agency's interpretation).

Accordingly, this Court should reevaluate Section 3506(b)(4) without affording deference to OMB's position. We submit that OMB's position does not have the “power to persuade” that warrants respect for the interpretation under Skidmore v. Swift & Company and, moreover, that it is not the most reasonable interpretation of the statute. In particular, four considerations show that OMB's contention that Section 3506(b)(4) is limited to “major” systems is not persuasive and should be rejected in favor of the first reading of the statute identified in the December 11, 2000, Opinion.

First, the interpretation set forth in the Supplemental Arbuckle declaration is not supported by any prior agency interpretation. In determining whether any agency interpretation is entitled to “respect” under Skidmore v. Swift & Co., the Supreme Court has stated that courts should examine “its consistency with earlier and later pronouncements.” Skidmore v. Swift & Co., 323 U.S. at 140. Mr. Arbuckle conceded that there are no prior agency statements articulating the position set forth in his declaration. Rather, OMB first articulated this interpretation of the statute in a declaration prepared specifically for this litigation. See Arbuckle Dep. at 24:10-27:5.

It is well-established that “[a]n after-the-fact rationalization of agency action -- an explanation developed for the sole purpose of defending in court the agency's acts -- is usually entitled to no deference from the courts.” Gonzalez v. Reno, 212 F.3d 1338, 1350 (11th Cir. 2000); accord Auer v. Robins, 519 U.S. 452 (1997)(indicating that deference is appropriate only because the agency's “position is in no sense a 'post hoc rationalizatio[n]' advanced by an agency seeking to defend past agency action against attack.” Id. at 462 (quoting Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 212 (1988)). Positions developed for the first time in the course of litigation are suspect because the agency's statement may be unduly motivated by a desire to defend the agency's initial action, even if it was ill-founded or made without adequate consideration of the relevant factors. See Investment Company Institute v. Camp, 401 U.S. 617, 628 (1971). Moreover, litigation positions are not given deference because they "may have been developed hastily, or under special pressure, or without adequate opportunity for presentation of conflicting views." FLRA v. United States Dep't of Treasury, 884 F.2d 1446, 1455 (D.C. Cir. 1989), cert. denied, 493 U.S. 155 (1990). Because the statutory interpretation articulated the Supplemental Arbuckle declaration does not appear in any prior agency statements, Skidmore v. Swift & Co. indicates that it is not entitled to special respect.

Second, OMB's reading of the “including” clause in Section 3506(b)(4) is, at best, an awkward reading of the statutory language, if not inconsistent with the language. Section 3506(b)(4) provides that agencies shall “maintain a current and complete inventory of the agency's information resources, including directories necessary to fulfill the requirements of section 3511 of this chapter.” 44 U.S.C. § 3506(b)(4). To arrive at OMB's construction, “including” must be interpreted as “and” so that the statute is construed as mandating (i) a current and complete inventory of information resources and (ii) an inventory of the major information systems, holdings, and dissemination products of each agency (which are not considered “information resources” under this interpretation).

However, “and” is not an ordinary meaning of the word “including.” “Including” typically identifies items that fall within the larger category that precedes it, not a separate, additional requirement. Federal Land Bank v. Bismarck Lumber Co., 314 U.S. 95, 100 (1941); accord Argosy Limited v. Hennigan, 404 F.2d 14, 20 (5th Cir. 1968); United States v. Gertz, 249 F.2d 662, 666 (9th Cir. 1957). Indeed, neither OMB nor this Court have been able to identify any instances in which “including” is used as the conjunction “and,” rather than identifying a non-exhaustive list of examples. See Opinion at 35 n.19. If Congress had intended that Section 3506(b)(4) require an inventory of information resources that would be “current and complete” and an inventory of information systems limited to “major” systems, it would have used the word “and” rather than “including.” OMB's construction is, if not unreasonable, at least a strained and unusual reading of the language that Congress actually used.

Third, OMB's construction also requires that it maintain that an “information system” cannot be an “information resource.” Otherwise the mandate for a “current and complete inventory of information resources” would swallow the limitation that OMB seeks to impose through its construction of the “including” clause because the “current and complete information resources” inventory would encompass both major and non-major “information systems.”

However, defendants concede that information systems, by definition, “are a subset from the world of 'information resources.'” Def's Reply In Support of Motion for Summary Judgment at 5 (filed Sept. 15, 1998)(italics in original); see also Deposition of Donald Arbuckle at 42:18-19 (“information systems are a part, a subset of information resources”). This concession that “information systems” are “information resources” is both consistent with the statutory definitions and logical. An “information system” is defined as a “discrete set of information resources,” 44 U.S.C. § 3502(8), but a discrete set of resources that have been organized to operate together may also be an “information resource” in its own right. For example, computer hardware, data storage devices, data processing personnel, and a database of information on government purchases each individually constitute an “information resource” under the PRA. See id. § 3502(6) (“'information resources' means information and related resources, such as personnel, equipment, funds, and information technology”). If these resources function together as components of an automated system that is “[u]sed to record and track requisitions, purchase orders, and contracts within the agencies and offices of the Executive Office of the President.,” they collectively constitute an “information system.” Exhibit 1, (describing Procurement Information System For Management (PRISM)). The system also qualifies as an “information resource” under the definition set forth in the PRA because the statute defines the term broadly to cover “information and related resources.” Thus, an agency inventory of “information resources” would include lists identifying both individual items of hardware and information systems. See Exhibit 1, Gallant Declaration, exhibit A (OA inventory of information systems). OMB's construction of Section 3506(b)(4) is unpersuasive because it implicitly rejects this relationship between “information resources” and “information systems,” even though OMB concedes that information systems are a subset of information resources.

Finally, OMB's construction of Section 3506(b)(4) is not persuasive because it attributes to Congress a policy that is peculiar, if not totally irrational. Under OMB's construction, agencies must compile a “complete” inventory of items such as personnel, equipment, and funds -- but the agency's inventory of the systems in which such resources are used may be limited to “major” systems. Thus, agencies must inventory each item of computer equipment, but they are not required to inventory systems in which computer equipment is used unless the systems qualify as “major.” Such a policy would be akin to an military unit compiling an inventory of every firearm, soldier and vehicle, but not assembling a complete inventory of the squads, divisions or battalions through which these resources are organized and deployed. OMB's assertion that this interpretation is preferable because it requires agencies to focus on their major information systems, see Suppl. Arbuckle Declaration ¶ 13, is not a persuasive defense because the statute still mandates that agencies maintain a current and complete inventory of their “information resources.” OMB offers no reason, and the legislative history does not suggest any reason, why Congress would have mandated exhaustive inventories for individual “resources” while limiting agencies' obligation to inventory the “information systems” that are equally, if not more, important in improving the agency's information management.

Accordingly, the OMB position set forth in the Supplemental Arbuckle Declaration is not entitled to deference and, judged on its own merits without special deference, is not a persuasive reading of the statute. The first reading identified in the Court's opinion, namely that Congress “intended that 'information resources' encompass 'information systems,” represents the better reading of the statutory language.


CONCLUSION

For the foregoing reasons, the Court should enter summary judgment against the OA and DoE on both the FOIA and PRA claims because the indices compiled by these agencies omit information systems that qualify as “major information systems.” In addition, the Court should reconsider its ruling on the interpretation of 44 U.S.C. § 3506(b)(4) and direct defendants to compile a “current and complete” inventory of their information systems to comply with that statute.

Respectfully Submitted,
____________________________
Michael Tankersley
(D.C. Bar No. 411978)
Amanda Frost
(D.C. Bar No. 467425)
PUBLIC CITIZEN LITIGATION GROUP
1600 20th Street, N.W.Washington, D.C. 20009
(202) 588-1000
Attorneys for Plaintiff
Public Citizen, Inc.

January 19, 2001


Footnote: 1   Defendants also submitted a declaration by Mr. Landon, but that declaration was prepared in July 1998, before the DoE prepared the list of major information systems that now appears on its web site. See Exhibit 7 to Government Defendants' Motion for Summary Judgment (filed July 2, 1998); Landon Dep. at 20.

Footnote: 2   See, e.g.,, Consumer Federation of America v. U.S. Dep't of Health and Human Services, 83 F.3d 1497, 1506-07 (D.C. Cir. 1996) (declaration from an agency official purporting to articulate the agency's rationale is rejected because agency submitted the “declaration only at the district court stage,” and the declaration offered an entirely new theory that had not been articulated by the agency during the administrative proceedings); National Ass'n. of Ins. Underwriters v. Clarke, 736 F. Supp. 1162, 1163 n.4 (D.D.C. 1990), rev'd on other grounds, 955 F.2d 731 (D.C. Cir. 1992) (agency request for permission to file a speech by an agency official that purported to give a post hoc explanation for agency's decision is rejected).