UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

PUBLIC CITIZEN, INC. 

Plaintiff, 

v.                                                                                              C.A. No. 97-2891 SSH

FRANKLIN D. RAINES, et al.

Defendants. 

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

 

1. This action challenges the failure of several of the principal agencies of the federal government to comply with 1995 Amendments to the Paperwork Reduction Act requiring agencies to maintain a current and complete directory of the agency's major information systems, 44 U.S.C. § 3506(b)(4), and with the Freedom of Information Act's mandate that the head of each agency make publicly available reference material or a guide that includes an index and description of such major information systems. 5 U.S.C. § 552(g).

2. This action arises under the Freedom of Information Act, 5 U.S.C. § 552, the Paperwork Reduction Act, 44 U.S.C. §§ 3501-3520, and the Administrative Procedure Act, 5 U.S.C. § 706.

3. This Court has jurisdiction pursuant to 28 U.S.C. § 1331.

PARTIES

4. Plaintiff PUBLIC CITIZEN, INC. ("Public Citizen") is a national nonprofit corporation and membership organization with approximately 120,000 members which, among other activities, conducts research and educational programs on government regulatory and information policies. Public Citizen makes extensive use of United States government records, including records held by units of the Executive Office of the President, and the Departments of Education, Energy, Justice and State. Public Citizen intends to make use of indices and descriptions of major information systems made available to the public by these agencies.

5. Defendant FRANKLIN D. RAINES is the Director and head of the Office of Management and Budget ("OMB"), an agency within the Executive Office of the President ("EOP") that evaluates, formulates, and coordinates management procedures and program objectives within and among Federal departments and agencies. OMB controls the administration of the Federal budget and is responsible for implementation of the many provisions of the Paperwork Reduction Act. 44 U.S.C. §§ 3501-3520.

6. Defendant ADA L. POSEY is the Acting Director and head of the Office of Administration, a component agency of the EOP which, among other things, provides administrative support services to all units within the EOP, including information, personnel, and financial management; data processing; library services; records maintenance; and general office operations, such as mail, messenger, printing, procurement, and supply services.

7. Defendant CHARLENE BARSHEFSKY is the United States Trade Representative and the head of the Office of the United States Trade Representative ("USTR"), a component agency of the EOP which, among other duties, is responsible for administering trade agreements, coordinating trade policy, and setting and administering overall trade policy.

8. Defendant RICHARD RILEY is the Secretary of Education and the head of the Department of Education, a federal agency that, among other duties, establishes policy for, administers, and coordinates most federal assistance to education, enforces federal law concerning equal access to education, and seeks to promote educational excellence throughout the United States.

9. Defendant FEDERICO PENA is the Secretary of Energy and the head of the Department of Energy, a federal agency that, among other duties, is responsible for providing technical information and the scientific and educational foundation for the technology, policy, and institutional leadership necessary to achieve efficiency in energy use, diversity in energy sources, a more productive and competitive economy, improved environmental quality, and a secure national defense.

10. Defendant JANET RENO is the Attorney General and the head of the Department of Justice, a federal agency that is responsible for federal law enforcement and represents the federal government in legal matters generally, rendering legal advice and opinions, upon request, to the President and to the heads of the executive departments.

11. Defendant MADELINE K. ALBRIGHT is the Secretary of State and the head of the Department of State, a federal agency that, among other duties, advises the President in the formulation and execution of foreign policy, negotiates treaties and agreements with foreign nations, and speaks for the United States in the United Nations and in more than 50 major international organizations in which the United States participates; and represents the United States at more than 800 international conferences annually.

STATUTORY FRAMEWORK

12. In 1995, Congress mandated that each agency shall "maintain a current and complete inventory of the agency's information resources, including directories necessary to fulfill the requirements of section 3511" of the Paperwork Reduction Act. 44 U.S.C. § 3506(b)(4). This mandate became effective over two years ago on October 1, 1995.

13. Section 3511 of the Paperwork Reduction Act provides, among other things, that the Director of OMB shall establish and maintain a Government Information Locator Service which "shall identify the major information systems, holdings, and dissemination products of each agency." 44 U.S.C. §  3511(a)(1).

14. On October 2, 1996, the Freedom of Information Act was amended to require that:

The head of each agency shall prepare and make publicly available upon request, reference material or a guide for requesting records or information from the agency, subject to the exemptions in subsection (b), including--

(1) an index of all major information systems of the agency;

(2) a description of major information and record locator systems maintained by the agency; and

(3) a handbook for obtaining various types and categories of public information from the agency pursuant to chapter 35 of title 44, and under this section.

5 U.S.C. § 552(g).

15. In order to give agencies time to take the steps necessary to comply with the 1996 amendments to the Freedom of Information Act, Congress provided that the requirement to prepare and make publicly available the reference material or guide described in 5 U.S.C. § 552(g) would not take effect for 180 days after the statute was enacted, which made this provision effective on March 31, 1997. Pub. L. No. 104-231, 110 Stat 2422, § 12 (1996).

16. In response to 5 U.S.C. § 552(g), numerous federal agencies have prepared and made available to the public reference materials and guides containing handbooks, indexes and descriptions of major agency information and record locator systems.

FIRST CLAIM FOR RELIEF
(Against All Defendants for Failure to Comply
With 5 U.S.C. § 552(g) and 44 U.S.C. § 3506(b)(4))

17. OMB and defendant Raines have failed to prepare and make available to the public upon request reference material or a guide containing an index and description of the OMB's major information systems and record locator systems as required by 5 U.S.C. § 552(g).

18. Further investigation or discovery will show that OMB and defendant Raines have failed to maintain a current and complete inventory of the agency's information systems as required by 44 U.S.C. § 3506(b)(4).

19. USTR and defendant Barshefsky have failed to prepare and make available to the public upon request reference material or a guide containing an index and description of the USTR's major information systems and record locator systems as required by 5 U.S.C. § 552(g).

20. Further investigation or discovery will show that USTR and defendant Barshefsky have failed to maintain a current and complete inventory of the agency's information systems as required by 44 U.S.C. § 3506(b)(4).

21. OA and defendant Posey have failed to prepare and make available to the public upon request reference material or a guide containing an index and description of the OA's major information systems and record locator systems as required by 5 U.S.C. § 552(g).

22. Further investigation or discovery will show that OA and defendant Posey have failed to maintain a current and complete inventory of the agency's information systems as required by 44 U.S.C. § 3506(b)(4).

23. The Department of Education and defendant Riley have failed to prepare and make available to the public upon request reference material or a guide containing an index and description of the Department's major information systems and record locator systems as required by 5 U.S.C. § 552(g).

24. Further investigation or discovery will show that the Department of Education and defendant Riley have failed to maintain a current and complete inventory of the agency's information systems as required by 44 U.S.C. § 3506(b)(4).

25. The Department of Energy and defendant Pena have failed to prepare and make available to the public upon request reference material or a guide containing an index and description of the Department's major information systems and record locator systems as required by 5 U.S.C. § 552(g).

26. Further investigation or discovery will show that the Department of Energy and defendant Pena have failed to maintain a current and complete inventory of the agency's information systems as required by 44 U.S.C. § 3506(b)(4).

27. The Department of Justice and defendant Reno have failed to prepare and make available to the public upon request reference material or a guide containing an index and description of the Department's major information systems and record locator systems as required by 5 U.S.C. § 552(g).

28. Further investigation or discovery will show that the Department of Justice and defendant Reno have failed to maintain a current and complete inventory of the agency's information systems as required by 44 U.S.C. § 3506(b)(4).

29. The Department of State and defendant Albright have failed to prepare and make available to the public upon request reference material or a guide containing an index and description of the Department's major information systems and record locator systems as required by 5 U.S.C. § 552(g).

30. Further investigation or discovery will show that the Department of State and defendant Albright have failed to maintain a current and complete inventory of the agency's information systems as required by 44 U.S.C. § 3506(b)(4).

31. Plaintiff, its staff, and its members have been injured by the defendants' failure to make information on their major information systems available to the public as required by the Freedom of Information Act, and will continue to be injured if the agencies headed by defendants are not required to comply with this mandate.

SECOND CLAIM FOR RELIEF
(Against Defendant Raines, Challenging OMB Memorandum to the Heads Of Agencies On The Requirements Of 5 U.S.C. § 552(g))

32. The Paperwork Reduction Act provides that the Director of OMB shall provide direction and oversee agency dissemination of and public access to information. 44 U.S.C. § 3504(a)(1)(ii). The statute further provides that the authority of the Director under this mandate "shall be exercised consistent with applicable law." Id. § 3504(a)(2).

33. On April 7, 1997, defendant Raines, in his capacity as Director of OMB, issued a Memorandum to the Heads of Executive Agencies on "Guidance on Developing a Handbook for Individuals Seeking Access to Public Information." This Memorandum is hereafter referred to as the "OMB Memorandum on Section 552(g)."

34. The OMB Memorandum on Section 552(g) states that agencies can satisfy the requirements of § 552(g)(1) and § 552(g)(2) "by establishing a Government Information Locator Service (GILS) presence. The requirements for GILS are described in the attached OMB Bulletin 95-01, 'Establishment of Government Locator Service.'"

35. OMB Bulletin 95-01 states that by December 31, 1995, each of the following types of records shall be described by agencies in GILS Core locator records: (1) automated information systems; (2) Privacy Act systems of records; and (3) locators that cover all of the agency's information dissemination products.

36. OMB Bulletin 95-01 does not require agencies to include in their GILS records:

(a) a description of information systems that are not automated and are not covered by the Privacy Act;

(b) a description of their electronic mail and word processing systems, because the directive specifically excludes such systems from the definition of automated information system; or

(c) locators for systems of documentary material that are not disseminated by an agency to the public.

37. The OMB Memorandum on Section 552(g) is arbitrary and capricious and contrary to law because it erroneously states that agencies can satisfy the requirements of 5 U.S.C. § 552(g)(1) that the agency provide "an index of all major information systems of the agency," by meeting the requirements in OMB Bulletin 95-01, even though OMB Bulletin 95-01 does not require an index of all major information systems.

38. The OMB Memorandum on Section 552(g) is arbitrary and capricious and contrary to law because it erroneously states that agencies can satisfy the requirements of 5 U.S.C. § 552(g)(2) that the agency provide "a description of major information and record locator systems maintained by the agency," by meeting the requirements in OMB Bulletin 95-01, even though OMB Bulletin 95-01 does not require a description of all such information and record locator systems.

39. Plaintiff, its staff, and its members have been injured by the erroneous statements in the OMB Memorandum on Section 552(g) because agencies following this statement have failed to make available to the public the information on their major information systems, and the information on their information and record locator systems, that the Freedom of Information Act requires agencies to make available to the public. Plaintiff, its staff, and its members will continue to be injured if OMB Memorandum on Section 552(g) is not corrected or set-aside.

PRAYER FOR RELIEF

WHEREFORE, plaintiff prays that this Court enter a judgment and order:

1. Declaring that the Office of Management and Budget, the Office of Administration, the Office of the United States Trade Representative, the Department of Education, the Department of Energy, the Department of Justice, and the Department of State, and the heads of each of these agencies, have unlawfully and unreasonably failed to comply with their obligations under 44 U.S.C. § 3506(b)(4) and 5 U.S.C. § 552(g);

2. Declaring that the OMB Memorandum on Section 552(g) is inconsistent with 5 U.S.C. § 552(g) and arbitrary and capricious;

3. Enjoining the defendants to promptly comply with 44 U.S.C. § 3506(b)(4) and 5 U.S.C. § 552(g);

4. Awarding plaintiff its costs and a reasonable attorney's fee; and

5. Granting such other and additional relief as the Court may deem just and proper.

Respectfully submitted,
 
 

_______________________

Michael E. Tankersley

D.C. Bar No. 411978
 
 

_______________________

Lucinda Sikes

D.C. Bar No. 431949

PUBLIC CITIZEN LITIGATION GROUP

1600 20th Street, NW

Washington, DC 20009

(202) 588-1000

Attorneys for Plaintiffs

Dated: March 25, 1998