Opinion of District Judge Stanley S. Harris in Public Citizen v. Lew, CA No. 97-2891

LEXSEE 2000 U.S. Dist. LEXIS 18734


United States District Court for the District of Columbia
Civil Action No. 97-2891 SSH

PUBLIC CITIZEN, INC.,
Plaintiff,
v.
JACOB J. LEW,
Director of the Office of Management and Budget, et al.,
Defendants.

December 11, 2000, Decided
December 11, 2000, Filed

OPINION

Before the Court are (1) defendants' motion for summary judgment; (2) plaintiff's cross-motion for summary judgment on its claim under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (1994 & Supp. IV); (3) plaintiff's motion for summary judgment against the Department of State ("State"), Department of Justice ("DoJ"), and Department of Education ("Education"); (4) plaintiff's cross-motion for summary judgment on its claim under the Paperwork Reduction Act (the "PRA"), 44 U.S.C. § § 3501-3520 (1994 & Supp. III 1997); and (5) plaintiff's motion to strike the supplemental declaration of Donald R. Arbuckle. Upon consideration of the parties' pleadings and the entire record, the Court(1) denies defendants' summary judgment motion; (2) grants in part and denies in part plaintiff's cross-motion for summary judgment on its FOIA claim; (3) denies as moot plaintiff's separate summary judgment motion against State, DoJ, and Education; (4) grants in part and denies in part plaintiff's cross- motion for summary judgment on its PRA claim; and (5) denies plaintiff's motion to strike. Although findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56, see Fed. R. Civ. P. 52(a); Summers v. Department of Justice, 140 F.3d 1077, 1079-80 (D.C. Cir. 1998), the Court sets forth its reasoning.

I. Background

On March 26, 1998, plaintiff filed a two-count amended complaint in this action against defendants Office of Management and Budget ("OMB"), Office of the United States Trade Representative ("USTR"), Office of Administration ("OA"), Department of Energy ("DoE"), State, DoJ, and Education (collectively "the government" or "defendants"). Plaintiff challenges defendants' compliance with various requirements under the PRA and FOIA relating to the indexing of their information systems; an information system is a system that organizes information for collection, processing, maintenance, transmission, and dissemination. See 61 Fed. Reg. 6428, 6431 (Feb. 20, 1996). First, plaintiff alleges that defendants have failed to prepare and make available to the public, upon request, an index and description of their major information systems, in violation of 5 U.S.C. § § 552(g)(1) & (2). Second, plaintiff alleges that defendants have failed to maintain a current and complete inventory of their information systems, in violation of 44 U.S.C. § 3506(b)(4).1 See Am. Compl. PP 17-31. Plaintiff requests a judgment declaring that defendants are not in compliance with these provisions, and appropriate injunctive relief.

A. Statutory Framework

The PRA requires each federal agency to "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). An agency's "information resources" consist of "information and related resources, such as personnel, equipment, funds, and information technology." Id. § 3502(6). Congress enacted § 3506(b)(4)'s requirement that agencies maintain a current and complete inventory of their information resources when it amended the PRA in 1995; as originally enacted, the PRA required that agencies "systematically inventory [their] major information systems." 44 U.S.C. § 3506(c)(1) (1988) (repealed). Although the 1995 amendments repealed this provision, § 3506(b)(4) preserves the requirement that agencies inventory their major information systems by virtue of its reference to § 3511, which requires the OMB Director to establish and maintain an "electronic Government Information Locator Service ["GILS"] ... which shall identify the major information systems, holdings, and dissemination products of each agency." 44 U.S.C. § 3511(a)(1). The parties disagree, however, over whether § 3506(b)(4) requires agencies to inventory all of their information systems, or only those information systems that qualify as "major" under the applicable definition. See infra Part III.C.

FOIA imposes a similar requirement on agencies to inventory their major information systems. Enacted as part of the Electronic Freedom of Information Act Amendments of 1996, § 552(g) states:

 

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).

Neither FOIA nor the PRA define the term "major information system." Nevertheless, the Office of Information and Regulatory Affairs ("OIRA") -- the office within OMB charged with implementing the PRA, see 44 U.S.C. § 3503 -- defined the term for purposes of the PRA when it promulgated OMB Circular A-130. Under this definition, a "major information system" is an "information system that requires special management attention because of its importance to an agency mission; its high development, operating, or maintenance costs; or its significant role in the administration of agency programs, finances, property, or other resources." 61 Fed. Reg. at 6431. An information system is "a discrete set of information resources organized for the collection, processing, maintenance, transmission, and dissemination of information, in accordance with defined procedures, whether automated or manual." Id. Although the OIRA promulgated the definition of "major information system" while implementing provisions of the PRA, the legislative history of the 1996 FOIA amendments indicates that Congress intended this definition to apply to § 552(g) as well. See S. Rep. No. 104-272, at 12 (1996). Thus, the parties agree that OMB Circular A-130's definition of "major information system" applies to plaintiff's claims under FOIA and the PRA. See Pl.'s FOIA Cross-Mot. at 5-6; Defs.' Mot. at 3-5.
 

B. The Parties' Summary Judgment Motions

The government moved for summary judgment on plaintiff's FOIA and PRA claims with respect to defendants OMB, USTR, OA, and DoE in July 1998. 2 In response to this motion, plaintiff filed a cross-motion for summary judgment against all seven defendants on its FOIA claim ("FOIA cross-motion"). After completing discovery on the extent to which each defendant was complying with § 3506(b)(4), plaintiff filed a cross- motion for summary judgment against all seven defendants on its PRA claim ("PRA cross- motion") in November 1999. These three summary judgment motions are currently before the Court, as well as plaintiff's motion to strike a declaration filed as an exhibit to the government's reply in support of its motion and opposition to plaintiff's FOIA cross- motion ("Reply & Opposition").

Plaintiff also filed a separate motion for summary judgment on its FOIA and PRA claims against defendants State, DoJ, and Education. Plaintiff filed this motion after filing its FOIA cross-motion, but before filing its PRA cross-motion. The basis for this separate motion was the government's concession in its Reply & Opposition that the three defendants were not in compliance with the requirements of 5 U.S.C. § § 552(g)(1) & (2), and 44 U.S.C. § 3506(b)(4). See Defs.' Reply & Opp'n at 2 n.2. In its subsequent opposition to plaintiff's PRA cross-motion, however, the government asserted that the three agencies are now in compliance with these provisions. See Defs.' Opp'n to Pl.'s PRA Cross-Mot. at 1 n.1 and 3. Because the government has effectively withdrawn its concession that State, DoJ, and Education are not in compliance with their statutory obligations, plaintiff's summary judgment motion is now moot. Accordingly, the Court will assess State's, DoJ's, and Education's compliance with the FOIA and PRA provisions in the larger context of the government's motion for summary judgment and plaintiff's cross-motions for summary judgement.

II. Standard of Review

Summary judgment may be granted only if the pleadings and evidence "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Within this framework, the Court reviews defendants' compliance with the FOIA and PRA provisions under the Administrative Procedure Act ("APA"), which empowers the Court to "hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). The scope of review under this standard is narrow, and precludes a court from "substituting its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 77 L. Ed. 2d 443, 103 S. Ct. 2856 (1983). Nevertheless, where the agency has failed to consider factors relevant to its inquiry or has relied on impermissible factors, or where the agency has committed a "clear error of judgment," the court must undo its action. Id.; accord GTE Serv. Corp. v. F.C.C., 340 U.S. App. D.C. 308, 205 F.3d 416, 421-22 (D.C. Cir. 2000); DIRECTV, Inc. v. F.C.C., 324 U.S. App. D.C. 72, 110 F.3d 816, 826 (D.C Cir. 1997).

In applying this standard, the Court will accord substantial deference to OMB's interpretation of the definition of "major information system" insofar as it is interpreting its own regulation. See National Wildlife Fed'n v. Browner, 326 U.S. App. D.C. 451, 127 F.3d 1126, 1129 (D.C. Cir. 1997) ("Generally, the court accords substantial deference to an agency's interpretation of its own regulations."); see also Buffalo Crushed Stone, Inc. v. Surface Transp. Bd., 338 U.S. App. D.C. 335, 194 F.3d 125, 128 (D.C. Cir. 1999) ("An agency's interpretation of its own regulation merits even greater deference than its interpretation of the statute that it administers."); Paralyzed Veterans of America v. D.C. Arena L.P., 326 U.S. App. D.C. 25, 117 F.3d 579, 584 (D.C. Cir.1997) (similar). For the most part, OMB's interpretation of this definition is set forth in the supplemental declaration of Donald Arbuckle ("Arbuckle Supplemental Declaration"), the Deputy Administrator of OIRA.3 See Defs.' Reply & Opp'n, Ex. 4. Provided this interpretation "does not violate the Constitution or a federal statute, it must be given controlling weight unless it is plainly erroneous or inconsistent with the regulation." National Wildlife Fed'n, 127 F.3d at 1129 (quoting Stinson v. United States, 508 U.S. 36, 45, 123 L. Ed. 2d 598, 113 S. Ct. 1913 (1993) (internal quotation and citation omitted)4

Plaintiff, nevertheless, contends that OMB's interpretation of its definition in the PRA context does not merit comparable deference in the FOIA context. See Pl.'s FOIA Cross-Mot. at 16 n.2. Plaintiff's argument lacks merit. Admittedly, courts review an agency's interpretation of FOIA de novo because "no single agency is entrusted with FOIA's primary interpretation, and agencies are not necessarily neutral interpreters insofar as FOIA compels release of information the agency might be reluctant to disclose." Association of Retired R.R. Workers v. United States R.R. Retirement Bd., 265 U.S. App. D.C. 183, 830 F.2d 331, 334 (D.C. Cir. 1987); accord FLRA v. Department of the Treasury, Fin. Management Serv., 280 U.S. App. D.C. 236, 884 F.2d 1446, 1451 (D.C. Cir. 1989). Nevertheless, this case does not present a situation in which an agency is construing a statutory exemption to FOIA's disclosure requirements. More importantly, OMB is not bereft of interpretive authority with respect to § 552(g) because Congress expressly approved OMB's definition of "major information system" in the context of § 552(g). The legislative history to the 1996 FOIA amendments states:

The term "major information system" is familiar to Federal agencies since it is defined in OMB Circular A-130. ... In accordance with OMB Circular A-130, agencies should already be establishing inventories of their "major information systems." This new requirement [that agencies provide access to an index and description of their major information systems] is not overlapping but, instead, is a consistent and coordinated legislative requirement to support administrative efforts already underway.

S. Rep. No. 104-272, at 12 (internal footnote omitted). Because Congress imported OMB's definition of "major information system" from the PRA regime, the Court will accord OMB's interpretation of that definition a level of deference in the FOIA context commensurate with that to which it is entitled in the PRA context.

Relatedly, plaintiff also argues that the Court should review de novo each defendant's determination of which information systems qualify as major. The Court disagrees. As with an agency's interpretation of the FOIA statute, an agency's withholding of records pursuant to a claimed FOIA exemption is reviewed de novo. See Quinon v. FBI, 318 U.S. App. D.C. 228, 86 F.3d 1222, 1227 (D.C. Cir. 1996). Nevertheless, Congress explicitly mandated this standard of review with respect to actions challenging such withholdings in 5 U.S.C. § 552(a)(4)(B). Other FOIA actions outside the scope of § 552(a)(4)(B), however, are reviewed under the standards set forth in § 706 of the APA. See, e.g., McDonnell Douglas Corp. v. NASA, 336 U.S. App. D.C. 368, 180 F.3d 303, 307 (D.C. Cir. 1999) (analyzing reverse-FOIA claim under standards in § 706(2)(A)); Reliance Electric Co. v. Consumer Prod. Safety Comm'n, 288 U.S. App. D.C. 30, 924 F.2d 274, 277 (D.C. Cir. 1991) (same). Admittedly, the rationale for mandating de novo review of an agency's withholding of records -- agencies' reluctance to disclose certain information -- is applicable to a review of agency action under § 552(g); this provision requires agencies to disclose the major information systems containing records that are the subject of FOIA requests. Nevertheless, in the absence of any statutory authorization for reviewing de novo agency action under § 552(g), the Court will not deviate from the standards mandated in § 706 of the APA.5

Finally, the government argues that "the implementing statutes and OMB Circular A-130 leave discretion to agencies to determine what documents meet the definition of major information system within the confines of the definition of that term." Defs.' Opp'n to Pl.'s PRA Cross-Mot. at 4. The thrust of the government's argument is unclear; it does not argue that the process of designating information systems as major is committed to agency discretion by law under 5 U.S.C. § 701(a)(2), but appears to suggest that the Court should accord agency designations some form of heightened deference, beyond that inherent in the arbitrary and capricious standard. Such deference is unwarranted. In support of its argument, the government relies on OMB's interpretation of Circular A-130's definition in the declaration of Donald Arbuckle, which states that "determining whether a particular information system qualifies as a 'major information system' involves an exercise of judgment, which requires a detailed understanding of the agency's mission priorities and is, in OMB's view, best left to the discretion of the agency." Arbuckle Decl. P 16. Nevertheless, the Arbuckle Declaration does not cite any basis in FOIA or the PRA for according agencies this discretion, nor can the Court discern any. Although the Court will defer to OMB's interpretation of its own regulation, it will not simply ratify OMB's unsupported -- and, in the context of this litigation, self-serving -- attempt to endow its co-defendants with a level of discretion that would shield their actions from judicial scrutiny. To do so would effectively eviscerate the level of review available under § 706(2)(A). Accordingly, the Court reviews defendants' application of the definition of "major information system," as interpreted by OMB, under the arbitrary and capricious standard, and does not accord defendants any deference beyond that inherent in the standard.

III. Discussion

A. Plaintiff's Motion To Strike

Plaintiff moves to strike the Arbuckle Supplemental Declaration. As indicated, Arbuckle is the Deputy Administrator of the OIRA, and served as the Acting Administrator when he prepared the declaration. The declaration sets forth the OIRA's interpretation of Circular A-130 and the scope of § 3506(b)(4). Plaintiff argues that Federal Rule of Civil Procedure 56(e) bars submission of this declaration because it requires that declarations submitted in connection with a summary judgment motion "set forth such facts as would admissible in evidence"; plaintiff contends that the Arbuckle Supplemental Declaration impermissibly presents "argument and legal conclusions" instead of facts. Pl.'s Mot. To Strike at 1. The government counters that the Arbuckle Supplemental Declaration is a permissible interpretation by OMB of the statute it administers and its implementing regulations. See Defs.' Opp'n at 1-4. Plaintiff responds that the declaration is not a permissible agency interpretation because it is a post hoc rationalization of OMB's conduct offered to advance its litigating position, and is not based on any OMB regulations, rulings, or administrative practices. See Pl.'s Reply at 2-3.

As a general rule, agency "litigating positions" are not entitled to deference when they merely represent counsel's "post hoc rationalizations" of agency conduct, and are "wholly unsupported by regulations, rulings, or administrative practice." Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212, 102 L. Ed. 2d 493, 109 S. Ct. 468 (1988); accord Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 156 (1991). Such agency positions are not entitled to deference because they do not necessarily reflect the views of the agency, but rather may have been developed hastily, without adequate consideration of opposing positions pursuant to the agency's normal deliberative process. See FLRA, 884 F.2d at 1455. Nevertheless, "the mere fact that an agency offers its interpretation in the course of litigation does not automatically preclude deference to the agency"; deference is proper as long as the agency's interpretation "reflects the 'agency's fair and considered judgment on the matter.'" National Wildlife Fed'n, 127 F.3d at 1129 (quoting Auer v. Robbins, 519 U.S. 452, 462, 137 L. Ed. 2d 79, 117 S. Ct. 905 (1997)); see also County of Los Angeles v. Shalala, 338 U.S. App. D.C. 168, 192 F.3d 1005, 1016 (D.C. Cir. 1999), cert. denied, 147 L. Ed. 2d 233, 120 S. Ct. 2197 (2000) (agency need not promulgate a legislative rule setting forth interpretation to be entitled to deference; "even if the legal briefs contained the first expression of the agency's views, under the appropriate circumstances," they would still be entitled to deference).

Applying these standards, the Court denies plaintiff's motion to strike the Arbuckle Supplemental Declaration because it finds that the declaration represents OMB's fair and considered judgment on the interpretation of the OMB circular and § 3506(b)(4). First, the interpretation was not offered by government counsel, but rather by the Acting Administrator of the OIRA, the office within OMB charged with implementing the PRA. See FLRA, 884 F.2d at 1455 (because agency head explicitly adopted view of amicus brief, there was "no risk that counsel may have acted as 'mavericks disembodied from the agency that they represent.'" (internal citation omitted)). Second, although plaintiff contends that the interpretations offered in the supplemental declaration are unsupported by prior OMB regulations, rulings, or practice, "there is nothing to suggest that the agency has ever before had any reason to address the issue." National Wildlife Fed'n, 127 F.3d at 1129. Indeed, the Court is unaware of any case or administrative action implicating the definition of "major information system" under FOIA and the PRA, or the proper scope of § 3506(b)(4). In short, the Court finds no reason to doubt that the Arbuckle Supplemental Declaration represents OMB's fair and considered judgment on those issues, and accordingly declines to strike the declaration from the record.

B. Summary Judgment on Plaintiff's FOIA Claim

As discussed, plaintiff's amended complaint alleges that defendants have failed to prepare and make available to the public, upon request, an index and description of their major information systems, in violation of § § 552(g)(1) & (2). In moving for summary judgment on this claim with respect to defendants OMB, USTR, OA, and DoE, the government provides a brief description of each agency's purported index of major information systems. At the end of each description, the government states: "Although [the defendant] has other information systems, they do not qualify as major information systems as defined in OMB Circular A-130." See Defs.' Mot. at 8-10. In support of each statement, the government cites a declaration of an official in the relevant agency; each cited portion of the declaration concludes, without discussion or analysis, that although the agency has other information systems not included in its index, they do not qualify as major information systems under the OMB circular definition. See Crawford Decl. P 9; Kristobek Decl. P 7; Gallant Decl. P 12; Landon Decl. P 7. As already discussed, however, defendants do not have unfettered discretion to determine which of their information systems qualify as major under the controlling definition. See supra Part II. Because the assertions made in the government's motion and the declarations of the agency officials are hardly sufficient to satisfy the government's burden of showing that it is entitled to judgment as a matter of law, the Court denies the government's motion for summary judgment on plaintiff's FOIA claim.

For its part, plaintiff pursues two broad lines of argument in moving for summary judgment on its FOIA claim. First, plaintiff makes a general argument that information systems containing certain records designated as "permanent" for archival purposes qualify as major information systems as a matter of law, and alleges that defendants have failed to designate certain systems containing permanent records as major. Second, plaintiff makes specific arguments with respect to each defendant's alleged failure to index major information systems. Plaintiff, however, does not purport to catalog every alleged violation of § 552(g)(1); rather, plaintiff offers examples of common misapplications of Circular A-130's definition by defendants. As set forth below, the Court disagrees with plaintiff's first argument, but finds that defendants are misapplying the definition of "major information system."

1. Permanent Records and Major Information Systems

The Federal Records Act ("FRA"), 44 U.S.C. § § 3301-3324, governs the disposition of records maintained by federal agencies. Agency records are classified as either "temporary" or "permanent" for the purpose of determining whether, and for how long, the government will preserve them. See 36 C.F.R. § § 1228.28, 1228.30. "A temporary record is any record which has been determined by the Archivist of the United States to have insufficient value ... to warrant its preservation by the National Archives and Records Administration [NARA]." Id. § 1220.14. "Permanent records" are records that have been determined "to have sufficient historical or other value to warrant preservation" by the National Archives. Id. § 1228.262(a).

Pursuant to this classification process, "federal agencies propose permanent retention of records in accordance with guidelines contained in the NARA records management handbook." Id. § 1228.28(a). NARA then determines whether the records in fact possess permanent value and, if so, when they should be transferred to the National Archives. See id. § 1228.28(c). NARA's records management handbook states:

 

NARA designates records as permanent if they have sufficient historical or other value to warrant their continued preservation by the Government. Such records may be kept mainly because they document an agency's origins, organization, functions, and significant transactions and activities. Or they may be kept mainly because they document the persons, places, things, or matters dealt with by an agency; that is because they contain information with significant research or reference value. ...
Permanent records require special attention .... They should be created on archival-quality media and kept properly and in good order. For example, they should be stored in appropriate containers and facilities and not be intermixed with other permanent or temporary records.
Pl.'s FOIA Cross-Mot., Ex. 4, at IV-5 and VI-5. Plaintiff draws a parallel between these standards and the definition of "major information system"; as discussed, a "major information system" is an "information system that requires special management attention because of its importance to an agency mission; its high development, operating, or maintenance costs; or its significant role in the administration of agency programs, finances, property, or other resources." 61 Fed. Reg. at 6431. Plaintiff argues that any information system containing permanent record qualifies, as a matter of law, as a major information system under the OMB circular definition, insofar as "permanent records require 'special management attention' because of their importance to an agency mission, or significant role in the administration of agency programs." Pl.'s FOIA Cross-Mot. at 14- 15.

The government admits that certain records classified as permanent under the FRA may exist within a major information system under FOIA, but contends that the mere presence of a permanent record does not automatically qualify an information system as major. The government primarily relies on the Arbuckle Supplemental Declaration, which states that "OMB has never construed the term 'major information system' in the PRA and Circular A-130 as necessarily including all information systems that contain 'permanent records.'" Arbuckle Suppl. Decl. P 37. The basis for OMB's interpretation turns on the different focal points of the FRA and the PRA. The declaration explains that the FRA is a records management statute, whereas the PRA -- the statute giving rise to the term "major information system" -- is an "information policy statute," addressing not only records management, but also information resources management. Id. P 24 (citing 44 U.S.C. § § 3504(b)-(h)). The requirement that agencies inventory their major information systems falls under the rubric of information resources management. See id. PP 25-31. Information resources management is "the process of managing information resources to accomplish agency missions and to improve agency performance, including through the reduction of information collection burdens on the public. " 44 U.S.C. § 3502(7). In this context, whether an information system is major under the OMB circular definition "depends on the burden that the 'information system' places on the agency's budget and personnel and on the role that the 'information system' plays in the agency's achievement of its mission." Arbuckle Suppl. Decl. P 31. Thus, the definition necessarily focuses on the "the impact and role that the 'information system' has in the ongoing operations of the agency." Id. By contrast, the classification of a record as permanent under the FRA turns on whether the record has sufficient "historical or other value to warrant preservation." Id. P 32 (quoting 36 C.F.R. § 1228.262). Given the different focal points of the PRA and FRA provisions, there is no "perfect overlap between 'major information system' and 'permanent record.'" Id.

Because this interpretation of "major information system" represents OMB's interpretation of its own regulation, the Court must give it controlling weight, provided it does not violate the Constitution or a federal statute, and is not plainly erroneous or inconsistent with the regulation. National Wildlife Fed'n, 127 F.3d at 1129. OMB's interpretation does not violate the Constitution. As to the other prongs of the required analysis, the Court agrees with OMB that the inquiries into whether a record qualifies as "permanent" and whether an information system qualifies as "major" are distinct, as the former focuses on a record's historical value while the latter focuses on a system's current value. Arguably, however, OMB overstates the significance of this distinction; a record may acquire historical value by virtue of its current value. Moreover, given the similarity in NARA's classification standards and the OMB circular's definition of "major information system," the presence of multiple permanent records within an information system may provide evidence that the system should be designated as "major." Nevertheless, because the classification of a record as permanent and the designation of an information system as major serve different functions under different statutory schemes, the Court finds that OMB's interpretation rejecting any "perfect overlap" does not violate the PRA or FOIA, and is not plainly erroneous or inconsistent with Circular A-130. Accordingly, the presence of a record classified as "permanent" pursuant to the FRA does not, as a matter of law, qualify an information system as "major" under OMB Circular A-130's definition.

2. Defendants' Individual Compliance with § 552(g)

Plaintiff provides a non-exhaustive list of instances in which each defendant has failed to include information systems allegedly qualifying as major in its index. Although the Court will not substitute its judgment for that of the agencies by mandating which agency systems qualify as major, the examples cited by plaintiff persuade the Court that defendants OMB, USTR, State, DoJ, and Education have misapplied the definition in the OMB circular.

Preliminarily, the Court notes that the parties' briefing of plaintiff's PRA cross- motion for summary judgment is relevant to their respective summary judgment motions on plaintiff's FOIA claim because the government argues that an agency's obligation under § 3506(b)(4) of the PRA, with respect to information systems, is co-extensive with its obligation under § 552(g)(1) of FOIA to index its major information systems. See, e.g., Defs.' Reply & Opp'n at 5-6; Defs.' Opp'n to Pl.'s PRA Cross-Mot. at 2. Although plaintiff disputes this interpretation, arguing that § 3506(b)(4) requires an agency to index all of its information systems, its PRA cross-motion alternatively argues that, even under the government's interpretation, defendants are not in compliance with § 3506(b)(4) because they have not compiled a complete inventory of their major information systems. Plaintiff's PRA cross-motion points to information systems, allegedly qualifying as major under the definition in OMB Circular A-130, which defendants have excluded from their indexes. Because this portion of plaintiff's PRA cross-motion, and the government's response thereto, are relevant to defendants' compliance under § 552(g)(1), the Court will consider it in its discussion of plaintiff's FOIA claim. The Court also notes that, with respect to some record files, plaintiff cites their designation as "permanent" pursuant to the FRA as proof that they were unlawfully excluded from defendants' index of major information systems. Because the Court concludes that a system's inclusion of "permanent" records does not automatically qualify it as major under Circular A-130, it will not consider examples of information systems where plaintiff relies solely on this rationale to allege that they were improperly excluded.

a. OMB

OMB's index of major information systems contains six information systems.6 See Pl.'s PRA Cross-Mot., Ex. 2. Among the information systems that plaintiff alleges OMB has failed to properly designate as major are OMB's Administration Budgetary Files and Administration Office Subject Files, and the budgetary and program records of each OMB branch office. See Pl.'s FOIA Cross-Mot. at 18. The government contends that OMB did not wrongfully exclude those systems from its index of major information systems because they contain "paper-based files that pose relatively little burden for OMB staff to maintain and use, and require relatively little management attention." Defs.' Reply & Opp'n at 12 (citing Crawford Suppl. Decl. P 15). Nevertheless, whether an information system requires special management attention because it is burdensome to maintain represents only one way in which it may qualify as major under the definition in Circular A-130; as noted, an information system also qualifies as major if it requires special management attention because of "its importance to an agency mission" or "its significant role in the administration of agency programs, finances, property, or other resources." 61 Fed. Reg. at 6431. Indeed, OMB's interpretation of its definition in the Arbuckle Supplemental Declaration reiterates that the three criteria are alternative means for designating an information system as major. Arbuckle Suppl. Decl. P 31 ("Under Circular A-130, an 'information system' is 'major' because the system 'requires special management attention' for one of several reasons ...."). Thus, OMB has misapplied the definition of "major information system" by considering only one prong of that definition.

Relatedly, plaintiff suggests that OMB is unlawfully excluding systems from its list of major information systems because they are manual, rather than automated. See Pl.'s PRA Cross-Mot. at 18 (citing Crawford Suppl. Decl. P 15). Plaintiff relies on a portion of the supplemental declaration of Clarence Crawford (the "Crawford Supplemental Declaration"), who is the head of OMB's Administration Office, which explains that certain paper records were excluded from OMB's inventory of major information systems because they pose relatively little burden to maintain and use, and do not require the special management attention described in the OMB Circular. Crawford Suppl. Decl. P 15. Nevertheless, the Crawford Supplemental Declaration also states that OMB has not categorically excluded manual systems from its index of major information systems, and provides examples of manual systems included in its index. See Crawford Suppl. Decl. PP 6-7. On the basis of this record, the Court does not find that OMB is categorically excluding manual systems.

Plaintiff also challenges OMB's exclusion of its word-processing system from its list of major information systems. The Crawford Supplemental Declaration states that OMB does not have a centralized word-processing system, but rather uses stand-alone computers whose capabilities constitute "applications" and fall outside the definition of an information system. Crawford Suppl. Decl. P 10. An "application" is "the use of information resources (information and information technology) to satisfy a specific set of user requirements." 61 Fed. Reg. at 6439. In support of its conclusion, the Crawford Supplemental Declaration relies on OMB's interpretation of Circular A-130, which excludes certain word-processing capabilities from the definition of information system. The Arbuckle Supplemental Declaration states that the OMB circular distinguishes between "major applications" and "general support systems." Arbuckle Suppl. Decl. P 18. A "major application" is "an application that requires special attention to security due to the risk and magnitude of the harm resulting from the loss, misuse, or unauthorized access to or modification of the information in the application," whereas a "general support system" is an "interconnected set of information resources under the same direct management control which shares common functionality." 61 Fed. Reg. at 6439. A general support system, but not a major application, is a type of information system. See Arbuckle Suppl. Decl. P 18. The Arbuckle Supplemental Declaration states that a word-processing capability is a common type of "application," and would not constitute a "general support system" -- and hence not a potential "major information system" -- unless the capability "were principally characterized by 'interconnection' amongst the users, and if the 'interconnected set of information resources' were 'under the same direct management control' and '[shared] common functionality.'" Id. P 19.

Plaintiff offers two rebuttals of this position. First, plaintiff argues that nothing in the definition of "major information system" excludes "major applications." OMB's interpretation, however, is entitled to controlling weight, see supra Part II, as the Court finds no indication that it violates a statute, or is plainly erroneous or inconsistent with Circular A-130. Second, plaintiff argues that, even under this interpretation, OMB's word- processing capability qualifies as a major information system because the computers used to operate the system are interconnected. See Pl.'s PRA Cross-Mot. at 19 & n.5 (citing Arbuckle Deposition). The government counters that "OMB has a decentralized word processing capability that uses stand-alone personal computers, rather than a mainframe word processing system that has local stations," and distinguishes OMB's word-processing capability from such centralized systems as OMB's budget, regulatory, and legislative systems, which OMB has designated as major. Defs.' Opp'n to Pl.'s PRA Cross-Mot. at 5-6. Nevertheless, the government's response overlooks certain statements made by Donald Arbuckle indicating that OMB's computers are in fact interconnected and allow OMB staff to share word-processing services, in the same manner that OMB's legislative and budget systems are interconnected and allow certain OMB staff to share those services. See Arbuckle Dep. at 36:7-19, 37:10-38:3. To be sure, OMB's word- processing capabilities are not generated through a mainframe computer, but rather appear to operate on a network system, which connects computers through a common server. However, nothing in OMB's interpretation of word-processing systems meeting the definition of a "general support system" -- a precondition for qualifying as a "major information system" -- excludes networked computer systems. Accordingly, simply because OMB's word-processing system is not generated through a mainframe computer does not bar it from qualifying as a major information system.

In sum, the Court finds that defendant OMB is misapplying its definition of "major information system" by failing to consider two of the alternative prongs of the definition, and by excluding its word-processing capability on the ground that it is not generated through a mainframe computer.

b. USTR

USTR's index of major information systems contain six systems.

7 See Kristobek Decl. P 8. Plaintiff argues that defendant USTR has improperly excluded its file systems labeled Multilateral Trade Negotiations, Bilateral Trade Negotiations, and Multilateral and Bilateral Trade Negotiations Agreements Implementation from its list of major information systems. The government contends that these systems do not qualify as major because they are no longer in current use by the agency. Defs.' Reply & Opp'n at 13. Plaintiff, however, counters that the OMB circular's definition of "major information system" does not require that the information system be in current use, and contends that any such requirement would be inconsistent with one of the "key benefits" of FOIA's indexing requirements -- to "provide[] the public with guidance on how agency records are maintained and organized so that they can formulate more reasonable FOIA requests." Pl.'s FOIA Reply at 8-9.

The Court finds that USTR's exclusion of information systems from its list of major systems on the ground that they are not in current use is a proper application of the definition of a "major information system" because it is consistent with OMB's interpretation of Circular A-130. Under that interpretation, a determination as to whether an information system qualifies as major turns on an assessment of the impact that it has on the ongoing operations of the agency. See supra Part III.B.1. An information system that is not in current use, however, does not have an impact on an agency's ongoing operations. Moreover, agencies often do not maintain possession of the contents of information systems that have become inactive. For example, files that are designated as "permanent" under the FRA are transferred to the National Archives when an "agency no longer needs to use the records for the purpose for which they were created or in its regular current business." 36 C.F.R. § 1228.262(a)(2)(i); see also Gallant Suppl. Decl. P 11. Thus, USTR properly excluded from its FOIA index information systems that are no longer in current use.

Plaintiff also challenges USTR's compliance with the FOIA indexing requirement by focusing on the criteria applied by Richard Kristobek, the USTR official responsible for compiling USTR's index. During his deposition, Kristobek stated that the criteria he used for designating an information system as major were that the information system meet the definition in OMB Circular A-130, that it be costly to maintain, that it be in current use, and that it be maintained by more than one unit within USTR. Kristobek Dep. at 72:17-73:3. Plaintiff contends that Kristobek improperly excluded information systems from its index "based on criteria that do not appear in Circular A-130." Pl.'s PRA Cross- Mot. at 22.

The Court agrees with plaintiff that the criteria used by Kristobek do not comport with the definition in the OMB circular. Although the requirement that the system be in current use is a proper ground for excluding information systems from USTR's index, the requirements that the system be costly to maintain and be used by more than one unit are not.8 First, although a system's high development, operating, or maintenance costs represent one basis for qualifying it as major, a system may alternatively qualify as major if it requires special management attention because of its "importance to an agency mission ... or its significant role in the administration of agency programs, finances, property, or other resources." 61 Fed. Reg. at 6431. The cost of maintaining the system under either of these alternative prongs is irrelevant.9 Second, the OMB circular discloses no basis for requiring that an information system be used by more than one unit within USTR to qualify as a major information system. That only one unit within an agency uses a particular information system does not, as a matter of law, foreclose the system from requiring special management attention for one of the reasons enumerated in the OMB circular.10

In sum, although USTR has properly excluded information systems no longer in current use from its FOIA index, it has misapplied Circular A-130's definition by requiring that a major information system be costly to maintain or be used by more than one unit within the agency.

c. OA

Defendant OA's index of major information systems contains six information systems.

11 Plaintiff contends that OA's index generally excludes manual information systems and, more specifically, excludes the paper-based subject files of the Deputy Director, which relate to the OA's major functions, policy decisions, and administrative management activities. See Pl.'s FOIA Cross-Mot. at 29-30 & Ex. 3; Pl.'s PRA Cross-Mot. at 24. The government responds that OA's index does not include any manual information systems because none of its manual systems meets the definition in the OMB circular. See Defs.' Reply & Opp'n at 14 (citing Gallant Suppl. Decl. P 10). More particularly, the government states that the Deputy Director files do not meet the definition 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." Id. (citing Gallant Suppl. Decl. P 10). The Court agrees with plaintiff that the government's response to its allegations regarding OA's systems is conclusory, and simply attempts to track the language of the OMB circular definition.12 See Pl.'s FOIA Reply at 11. Nevertheless, plaintiff has not established that it is entitled to summary judgment by showing that OA has categorically excluded manual systems, or relied on an impermissible factor or committed a clear error of judgment in excluding the Deputy Director files from its index of major information systems. Although plaintiff argues that the Deputy Director files are sufficiently important to warrant preservation as "permanent" files under the FRA, as discussed, this designation does not automatically qualify the system as major.13

d. DoE

In its FOIA cross-motion, plaintiff argued that DoE had not prepared an inventory or description of its major information systems, but rather had simply used a list of its library and database resources to satisfy FOIA's requirements. Pl.'s FOIA Cross-Mot. at 28-29. Plaintiff's PRA cross-motion states that DoE began to prepare a single index of its major information systems in accordance with the OMB circular definition in 1998, and posted this list on the Internet in February 1999.14 Plaintiff contends, however, that DoE's index is still incomplete because it excludes manual systems; during his deposition, Howard Landon, the official responsible for compiling DoE's list, stated that he could not recall whether DoE considered any non-automated systems for inclusion on the list. Landon Dep. at 62:21 - 63:6. As an example of an improperly excluded manual information system, plaintiff points to certain litigation files maintained by DoE, which DoE describes as "significant case files determined by DoE to have had a significant effect on a statute, regulation, or rule." Id., Ex. 5 at 2. The government counters plaintiff's assertions by pointing to other portions of Landon's deposition in which he stated that most of DoE's systems are automated and that DoE did not categorically exclude manual systems from its list of major information systems. See id. at 61:22, 62:17-20.

The ambiguous (and somewhat inconsistent) indications in Landon's deposition create an issue of material fact as to whether DoE actually considered manual information systems for inclusion in its index of major information systems. Nor does DoE's exclusion of its significant litigation files help to resolve this issue by providing evidence that DoE failed to consider manual systems; DoE may have concluded that this set of files does not constitute a major information system after applying the definition in Circular A-130. In this vein, the Court is not satisfied that DoE improperly excluded this system from its index of major information systems. Although plaintiff argues that a system of case files that DoE deems to have had a "significant effect on a statute, regulation, or rule" constitutes a major information system because it invariably plays a significant role in the administration of agency programs, plaintiff has not provided a more specific description of the case files in this system and the agency programs they purportedly affect. On the sole basis of DoE's one-sentence description of its case files, the Court cannot conclude that it committed a clear error of judgment in excluding them from its index.

e. State

As discussed, the government conceded that defendants State, DoJ, and Education were not in compliance with the FOIA provisions at issue in this case in its Reply & Opposition, but now asserts that the agencies are in compliance. See supra Part I.B. The declaration of Margaret P. Grafeld -- the director of State's Office of Information Resources Management Programs and Services -- recounts State's efforts to comply with § 552(g) of FOIA. The declaration states that State is in the process of making an inventory of its records publicly available by posting a detailed listing of its records disposition schedules on its web site. Grafeld Decl. PP 8-10. State appears to have completed this process.

15 See Pl.'s PRA Cross-Mot., Ex. 12. In its PRA cross-motion, plaintiff admits that "the public dissemination of this list represents a tremendous improvement in [State's] compliance with the FOIA." Pl.'s PRA Cross-Mot. at 27. Nevertheless, the Court finds this list inadequate because it does not identify or contain a description of State's major information systems. Moreover, as a list of information systems, it is incomplete because, by definition, it excludes unscheduled records.16 Thus, to the extent that State's records disposition schedules contains its (unidentified) major information systems, they exclude potential major information systems consisting of unscheduled records. The government has not explained why systems containing unscheduled records should be excluded from the definition of "major information systems." Importantly, because agencies are under no fixed deadline to schedule their records, using lists of scheduled records to comply with FOIA's indexing requirement could result in significant omissions from an agency's index of its major information systems. See id. § 1228.22 ("Ultimately, all records of an agency must be scheduled, but they need not all be scheduled at the same time. An agency may schedule the records of one function, program or organizational element at a time."); see also id. § 1228.24 (describing process of scheduling records). In sum, State has not provided a description of its major information systems, and has misapplied the OMB circular definition by categorically excluding systems containing unscheduled records.

f. DoJ

Plaintiff's PRA cross-motion states that, since June 1998, DoJ has expanded its index of major information systems from 17 to 160 items by requesting that individual components of DoJ submit lists of their major information systems to a Task Force created to oversee DoJ's compliance process.17 See Pl.'s PRA Cross-Mot. at 30. Plaintiff nevertheless alleges that DoJ's index of major information system remains incomplete because Michael Jordan, the head of the Task Force, allegedly gave the DoJ components improper advice as to which systems met the definition in the OMB circular. See id. at 31- 32. First, plaintiff contends that Jordan often instructed the components to use a "common sense approach" in preparing their