UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

PUBLIC CITIZEN, INC. 
Plaintiff,                                                                   Civil Action

v.                                                                             No. 97-2891 SSH

FRANKLIN D. RAINES, et al.
Defendants.

PLAINTIFF'S OPPOSITION TO DEFENDANT'S
MOTION TO DISMISS FIRST CLAIM FOR RELIEF
Introduction

This action challenges the failure of the Office of Management and Budget ("OMB") and six other federal agencies to comply with statutes mandating that they maintain an inventory of their information systems, and provide the public with reference materials containing indices and descriptions of their major information systems.(1) The Administrative Procedure Act, 5 U.S.C. § 706, expressly provides a private right of action for claims that agencies have failed to comply with their statutory obligations. Consequently, defendants' motion to dismiss the First Claim because there is no "private right of action" in the statutes at issue is without merit. Indeed, the Supreme Court has specifically addressed and rejected analogous arguments. See Japan Whaling Ass'n v. American Cetacean Soc., 478 U.S. 221, 230 n. 4 (1986). The Motion to Dismiss should be denied, and discovery permitted to proceed on the defendant agencies' compliance with the statute.

Plaintiff's Amended Complaint also sets forth a Second Claim for Relief that challenges an April 7, 1997 OMB Memorandum in which OMB instructs agencies that they do not need to provide the public with descriptions of all of the information systems covered by one of the statutes at issue here, 5 U.S.C. § 552. See Amended Complaint ¶¶ 32-39. Just four days ago, on April 23, 1998, OMB rescinded this Memorandum and replaced the language that plaintiff challenges with new instructions that meet plaintiff's objections. Accordingly, the Second Claim has been rendered moot by the agency providing the relief requested in the complaint.

Background

This case addresses a critical problem in federal information management, namely the absence of useful inventories describing the records held by federal agencies. Although agencies have long been required to inventory and schedule their records, agency compliance with these requirements has been uneven.(2) For many years, experts have complained that the absence of reliable inventories describing the information held by various agencies severely handicaps federal information management.(3) The lack of reliable inventories of the government's holdings hinders the government's own information management and planning, and also means that agencies are unable to find useful information that has already been collected and organized by fellow government agencies. The lack of useful inventories also injures members of the public who use government publications, databases, and bulletins, or use the Freedom of Information Act to conduct research. As a government task force on access to government information observed in 1995, "[t]he public has no efficient and accurate way of learning what information the agency has," and no idea "how the files are arranged, how long they are kept, or where they are stored."(4)

Congress has responded to this problem by mandating that agencies compile inventories of their information systems, and provide descriptions of their record holdings to the public. First, in 1995, Congress amended the Paperwork Reduction Act ("PRA") to require better information management practices. Although the PRA takes its name from its provisions on reducing paperwork burdens arising from agencies' efforts to collect information, see 44 U.S.C. §§ 3504(c), 3506(c), these provisions are only a small part of the Act. The Act also addresses dissemination of government information to the public, records management, and other information policy issues. See, e.g., 44 U.S.C. §§ 3504(b), (d), (f), 3506(b), (d), (f). Congress amended these provisions in 1995 to provide that "each agency shall --"
  in consultation with the Director [of the Office of Management and Budget], the Administrator of General Services, and the Archivist of the United States, 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.

Id. § 3506(b)(4). The "current and complete inventory" required by this mandate must include each agency's major information systems because Section 3511 of chapter 44 provides for the creation of 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).

In 1996, Congress imposed a related requirement in the Electronic Freedom of Information Act Amendments of 1996. Section 552(g) of the Freedom of Information Act ("FOIA") now provides 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) (as amended by P.L. 104-231, 110 Stat. 2422).

Section 552(g) became effective on March 31, 1997. Even a year later, however, the materials that federal agencies have issued to comply with Section 552(g) fail to include all the information and locator systems covered by the statute. For example, the records management schedule for the Office of the United States Trade Representative ("USTR") shows that the agency has numerous information systems and records locators. See Exhibit 3, "Comprehensive Records Control Schedule for the Office of the United States Trade Representative." Only a small fraction of these systems, however, are included in the indices that USTR has prepared to satisfy its obligation under Section 552(g). USTR's "Public Handbook" under Section 552 instructs the public to consult USTR's "GILS" records for an index of major information systems and locator systems. See Exhibit 4, "Public Handbook for Gaining Access to USTR Information." The USTR's GILS entries, however, only describe six information systems. See Exhibit 5. The USTR has many other record systems -- such as manual and computerized systems on Multilateral Trade Negotiations, compilations of press releases and reports, advisory committee files -- that are not described or identified in the six-item inventory that USTR makes available to the public. See Exhibit 3, items 14, 15, 16, 20, 29, 32f, 32h.

For the past year, OMB has encouraged this exclusion of numerous information systems from the reference materials provided to the public under Section 552(g). On April 7, 1997, the Director of OMB issued a Memorandum to the Heads of Executive Agencies on how to implement Section 552(g). See Exhibit 1, OMB Memorandum M-97-10(hereinafter, "OMB Memorandum on Section 552(g)") Under the Paperwork Reduction Act, the Director has responsibility for providing direction on agency dissemination of information, and public access to information, 44 U.S.C. § 3504(a)(1)(B)(ii). The OMB Director's Memorandum on Section 552(g) stated that:
  With respect to paragraphs (1) and (2) [of Section 552(g)], an agency can satisfy these requirements 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."

Exhibit 1.

OMB Bulletin 95-01 sets forth a system for describing government records designed by OMB in 1994, long before Congress enacted Section 552(g). The inventory OMB directed agencies to compile in 1994 is much more limited than the requirements set forth in Section 552(g), and is subject to numerous exemptions that are not in the statute. Instead of requiring agencies to describe "all major information systems," the Bulletin states that agencies shall compile an inventory for three types of records: (1) automated information systems; (2) Privacy Act systems of records; and (3) systems used to locate documentary materials that are disseminated to the public. Exhibit 1, Attachment, ¶ 4.a. Thus, manual record systems that are not used to disseminate information to the public are not covered by the Bulletin. Moreover, the Bulletin specifically exempts a number of automated information systems from being inventoried, including electronic mail and word processing systems. Id. ¶ 2.

On April 23, 1998, OMB rescinded its April 7, 1997 Memorandum on Section 552(g). Instead, the OMB issued a new Memorandum that specifically states that agency's Section 552(g) materials should not be limited to the systems covered by Bulletin 95-01. OMB's instructions now state that agencies' Section 552(g) indices and descriptions should include the systems described in the Bulletin "as well as any other major information and record locator systems the agency has identified." Exhibit 2, "Updated Guidance on Developing a Handbook for Individuals Seeing Access to Public Information." The reference materials of OMB, USTR, and many other agencies fail to comply with this mandate.

Public Citizen is a nonprofit corporation and membership organization that makes extensive use of government records and information in order to conduct research and educational programs on government regulatory and information policies. Public Citizen challenges the failure of OMB, USTR and other agencies to prepare a "complete and current" inventory of their information systems in compliance with the PRA, and the agencies' failure to provide the public with the information required by Section 552(g) of the FOIA, because the agencies' actions deprive Public Citizen of the research tools and indices that Congress mandated so that the public could locate agency records. Amended Complaint ¶¶ 4, 31.

ARGUMENT
DEFENDANTS' MOTION TO DISMISS THE FIRST CLAIM FOR RELIEF MUST BE DENIED BECAUSE THE ADMINISTRATIVE PROCEDURE ACT EXPRESSLY PROVIDES A PRIVATE RIGHT OF ACTION TO CHALLENGE AGENCIES' FAILURE TO COMPLY WITH STATUTORY MANDATES.

Defendants' argument that "there is no jurisdiction" over plaintiff's claim that defendants have violated the PRA and FOIA fails because the Administrative Procedure Act, which defendants inexplicably ignore, provides plaintiff's right of action. Indeed, the complaint expressly states that plaintiff does not claim that jurisdiction is based on the FOIA or the PRA. Rather, this Court has jurisdiction under 28 U.S.C. § 1331, because this case arises under federal law, and the APA provides the right of action. See Complaint and Amended Complaint ¶¶ 2, 3.

Defendants' argument that there is no "right of action" to challenge federal agencies' failure to comply with a statute unless the statute at issue specifically provides such a right of action has been rejected repeatedly. For example, in Japan Whaling Ass'n v. American Cetacean Soc., the Supreme Court explained why the APA forecloses such a claim:
  We also reject the Secretary's suggestion that no private cause of action is available to respondents. Respondents brought suit against the Secretary of Commerce, the head of a federal agency, and the suit, in essence, is one to "compel agency action unlawfully withheld," 5 U.S.C. § 706(1), or alternatively, to "hold unlawful and set aside agency action . . . found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." § 706(2)(A). The "right of action" in such cases is expressly created by the Administrative Procedure Act (APA), which states that "final agency action for which there is no other adequate remedy in a court [is] subject to judicial review," § 704, at the behest of "[a] person . . . adversely affected or aggrieved by agency action." § 702 (1982 ed. Supp. III). A separate indication of congressional intent to make agency action reviewable under the APA is not necessary; instead, the rule is that the cause of action for review of such action is available absent some clear and convincing evidence of legislative intention to preclude review.

478 U.S. 221, 230 n.4 (1986).(5)

Similarly, in James Madison Limited v. Ludwig, 82 F.3d 1085 (D.C. Cir. 1996), agency officials claimed that, because the substantive statute at issue did not have a private right of action, plaintiffs could not bring an action to enforce the statute. The Court of Appeals rejected the claim, saying:
  In the absence of such specific authorization, we do not presume, as the FDIC argues, that Congress intended to preclude judicial review. Rather, we assume just the opposite -- that the Administrative Procedure Act authorizes federal district courts to review the appointment, unless another statute specifically precludes review or the action is committed by law to agency discretion. 5 U.S.C. § 701(a) (1994). Because of this presumption favoring judicial review, we require "'clear and convincing evidence' of a legislative intention" to bar such review.

Id. at 1092 (quoting Ball, Ball & Brosamer, Inc. v. Reich, 24 F.3d 1447, 1450 (D.C. Cir. 1994) (case citations omitted)

The analysis in these cases is fully applicable here. Whether the PRA or the FOIA contain a "private right of action" is irrelevant because the APA provides a private right of action for any person suffering legal wrong because "an agency or an officer or employee acted or failed to act in an official capacity." 5 U.S.C. § 702. Congress does not need to specifically authorize judicial review in statutes like the PRA because the APA and longstanding precedents establish a "strong presumption" that agency compliance with the statute is subject to judicial review. Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670-71 (1986). This presumption of reviewability can be overcome only upon a "'showing of "clear and convincing evidence" of a . . . legislative intent' to restrict access to judicial review." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410 (1971) (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 141 (1967)). As the Supreme Court has stressed, "[w]e ordinarily presume that Congress intends the executive to obey its statutory commands and, accordingly, that it expects the courts to grant relief when an executive agency violates such a command." Bowen v. Michigan Academy of Family Physicians, 467 U.S. 667, 681-82 (1986).

This presumption applies to agencies' failures to comply with the provisions of the PRA and FOIA at issue here. Nothing in the PRA or the FOIA preclude review under the APA. Indeed, defendants do not offer any argument that there is "clear and convincing evidence" that Congress intended to preclude review when agencies violate these statutes. These statutes specifically mandate that agencies "shall" "maintain a current and complete inventory," 44 U.S.C. § 3506(b)(4), and "shall prepare and make publicly available" the materials at issue here. 5 U.S.C. § 552(g). Such mandatory language establishes duties that are subject to judicial enforcement under the APA. See Armstrong v. Bush, 924 F.2d 282, 295-96 (D.C. Cir. 1991) (statute stating that officials "shall" take action leaves no discretion to the officials, and imposes obligations that are subject to judicial review and enforcement under the APA).

The cases cited by defendants in support of their motion to dismiss do not support their claim that judicial review is not available in this case. The only authority defendants cite with respect to the PRA is an unpublished memorandum denying a preliminary injunction, and the transcript of a bench ruling holding that the Court of Appeals had exclusive jurisdiction of the plaintiffs' claim. The unpublished Memorandum in Council on Regulatory and Information Management, Inc. v. Department of Labor (Defendants Ex. 1), relies principally on the conclusion that plaintiff lacks standing, and relies only incidently on the conclusion that plaintiff has not demonstrated a "substantial likelihood of success on the merits" because Section 3512 of the PRA provides that defects in the approval of government forms under the PRA can be raised as a defense. The bench ruling in Portland Cellular Partnership v. United States (Defendants' Ex. 3) simply cites the analysis of Council on Regulatory and Information Management, as a potential alternative ground.

These unpublished decisions provide no support for dismissal of plaintiff's claim here for two reasons. First, neither of these decisions address the private right of action provided by the APA. Second, these decisions address the "collection of information" provisions of the PRA, and not the provision of the PRA at issue here. Section 3512 of the PRA provides a defense when the collection of information provisions of the PRA are violated, but it does not address violations of the PRA's independent mandate that agencies "maintain a current and complete inventory" of their information systems. 44 U.S.C. § 3506(b)(4). Neither of these decisions hold, or even suggest, that Section 3512 forecloses private actions to enforce the entire PRA.

With respect to the FOIA, defendants claim that Kennecott Utah Copper Corp. v. Dep't of the Interior, 88 F.3d 1191 (D.C. Cir. 1996), holds that there is no jurisdiction for plaintiff's claim here. This argument is disingenuous. Defendants fail to disclose that in Kennecott the Court of Appeals declined to address whether the APA or the Mandamus and Venue Act provide a cause of action to enforce the affirmative disclosure provisions of the FOIA because the appellant failed to rely on either of these statutes in the district court, and relied entirely on the FOIA. 88 F.3d at 1203. Thus, Kennecott is inapplicable in this case, because the complaint here specifically does not rely on FOIA for jurisdiction. See also Tax Analysts v. Internal Revenue Service, 117 F.3d 607, 610 n.4 (Kennecott left open the question of whether other sources of law might authorize additional remedial orders in FOIA cases).

Supreme Court precedent makes plain that the FOIA does not preclude reliance on the APA or the Mandamus Act to enforce the affirmative disclosure obligations that FOIA imposes on agencies. In Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1 (1974), the Supreme Court considered the claim that the courts' authority to order the disclosure of improperly withheld records under 5 U.S.C. § 552(a)(4), is the exclusive method for enforcing the disclosure requirements of the Act. Id. at 17. The Supreme Court rejected this argument, and held that the FOIA does not implicitly or explicitly limit the courts' ability to grant other equitable relief. Id. at 19-20. Moreover, in Chrysler Corp. v. Brown, 441 U.S. 281 (1979), the Supreme Court concluded that, although FOIA did not provide a private right of action to enjoin an agency from disclosing records, id. at 294, the APA nonetheless provides a right to seek judicial review of whether the agency's action was "in accordance with law." Id. at 317-18. For the same reasons, even though the FOIA itself does not provide jurisdiction to review agency's compliance with Section 552(g), the FOIA does not limit or foreclose this Court's authority under the APA to review the defendant agencies' compliance with the law under the APA.

In short, defendants' argument fails because it completely ignores the APA, which expressly provides for the private right of action that defendants claim is lacking. Indeed, the APA specifically provides that agency compliance with statutes is subject to judicial review, and nothing in the PRA or FOIA forecloses judicial review.

CONCLUSION

Defendants' motion to dismiss should be denied.

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 Plaintiff

Dated: April 27, 1998
1. The other agencies named as defendants are the Office of Administration in the Executive Office of the President, the Office of the U.S. Trade Representative, the Department of Education, the Department of Energy, the Department of Justice, and the Department of State.

2. See 36 C.F.R. §§ 1228.22(b), 1228.24 (1997); see also Eliot J. Christian, Helping The Public Find Information, 21 J. of Gov. Inf. 305, 306 (1994) (agencies are already required to create and maintain an inventory of their information systems and information dissemination products, but compliance with this requirement "varies greatly"). The National Archives and Records Administration (NARA) states that "[a]necdotal evidence suggests" that only 35% to 45% of the records of Federal agencies are now inventoried and scheduled within two years of creation, but even this estimate may be optimistic since "NARA now has no rigorous process in place to determine what percentage of Federal Records have been inventoried and scheduled to be retained for specified periods of time." The Strategic Plan of the National Archives and Records Administration, 1997-2007, at 22 (Sept. 1997).

3. See C. McClure, et al., Federal Information Inventory/Locator Systems: From Burden to Benefit (Report to the General Services Administration), at 1 (July, 1990) ("it is likely that a broad range of government information resources are inadequately utilized because they cannot be identified and located"); Office of Technology Assessment, Informing the Nation, 277 (1988) ("scholars, researchers, and librarians have for years pointed out the need for improved indexing of Federal information"); National Academy of Public Administration, The Archives of the Future: Archival Strategies for the Treatment of Electronic Databases at 31-33 (1992) (study found that numerous electronic databases were not included in agency inventories, and concluded that government wide inventory system was needed to permit National Archives to identify electronic databases better and earlier).

4. Department of the Interior, Report of the National Performance Review Freedom of Information Act Reinvention Team, Gateway to Government Information at 11 (Sept. 1995).

5. Even if the APA did not apply, the Mandamus and Venue Act of 1962 provides a private right of "action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to plaintiff." 28
U.S.C. § 1361. In the Japan Whaling action, the Court of Appeals concluded that review was available, without relying on the APA, by characterizing the plaintiffs' claim as one for mandamus. See American Cetacean Soc. v. Baldridge, 768 F. 2d 426 (D.C. Cir. 1985), rev'd on other grounds, 478 U.S. 221 (1986). Either the APA or the Mandamus Act are sufficient to defeat defendants' claim here that there is no "private right" of action to challenge their failure to comply with the statutes at issue.