Harkonen v. U.S. Dep't of Justice
| Decision Date | 03 December 2012 |
| Docket Number | No. C 12-629 CW,C 12-629 CW |
| Parties | W. SCOTT HARKONEN, M.D., Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE; and UNITED STATES OFFICE OF MANAGEMENT AND BUDGET, Defendants. |
| Court | U.S. District Court — Northern District of California |
DEFENDANTS' MOTION
TO DISMISS (Docket
No. 8) AND DENYING
PLAINTIFF'S MOTION
FOR SUMMARY
JUDGMENT (Docket No. 21)
This case arises out of Defendant United States Department of Justice (DOJ)'s denial of Plaintiff W. Scott Harkonen's multiple requests for correction of a press release that DOJ disseminated announcing Plaintiff's criminal conviction for wire fraud. Plaintiff seeks review of these denials and brings facial and as-applied challenges to the information quality guidelines promulgated by DOJ and co-Defendant United States Office of Management and Budget (OMB). Defendants move to dismiss Plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff opposes and cross-moves for summary judgment. Having considered the papers filed by the parties and their arguments at the hearing, the Court GRANTS Defendants' motion to dismiss and DENIES Plaintiff's motion for summary judgment.
The IQA, which was enacted in 2000, provides in full:
44 U.S.C. § 3516, note.
Title 44 U.S.C. § 3504(d)(1), in turn, provides, "With respect to information dissemination, the Director [of the OMB] shall develop and oversee the implementation of policies,principles, standards, and guidelines to . . . apply to Federal agency dissemination of public information, regardless of the form or format in which such information is disseminated."
On June 28, 2001, the OMB issued proposed guidelines implementing the IQA and requesting public comment. 66 Fed. Reg. 34489.
On September 28, 2001, the OMB issued final guidelines implementing the IQA. 66 Fed. Reg. 49718. At that time, the OMB requested additional comments on a provision not relevant to the case at hand and, after receiving further comments, issued updated final guidelines on February 22, 2002. See 67 Fed. Reg. 8452 (hereinafter, the OMB guidelines).
The OMB guidelines require agencies to "adopt a basic standard of quality (including objectivity, utility, and integrity) as a performance goal," including "specific standards of quality that are appropriate for the various categories of information they disseminate." 67 Fed. Reg. 8458-59. "Quality is to be ensured and established at levels appropriate to the nature and timeliness of the information to be disseminated." Id. at 8458. "'Objectivity' includes whether disseminated information is being presented in an accurate, clear, complete, and unbiased manner." Id. at 8460. The guidelines also require agencies to "develop a process to review the quality . . . of information before it is disseminated," and "administrative mechanisms allowing affected persons to seek and obtain, where appropriate, timely correction of information maintained and disseminated by the agency that does not comply with OMB or agency guidelines."Id. at 8459. Finally, agencies are required to prepare reports providing the agency's information quality guidelines and information regarding the number and nature of the complaints received by the agency and how they were resolved. Id.
By their terms, the OMB guidelines apply to "information" that is "disseminated by Federal agencies." Id. at 8458. The guidelines define information to mean "any communication or representation of knowledge such as facts or data, in any medium or form," including "information that an agency disseminates from a web page," but not "opinions, where the agency's presentation makes it clear that what is being offered is someone's opinion rather than fact or the agency's views." Id. at 8460. The guidelines define dissemination as "agency initiated or sponsored distribution of information to the public," but states that this definition "does not include distribution limited to correspondence with individuals or persons, press releases, archival records, public filings, subpoenas or adjudicative processes." Id.
The guidelines direct that the administrative correction process "shall be flexible" and "appropriate to the nature and timeliness of the disseminated information." Id. at 8459. The OMB commentary provided when the guidelines were published states that it "does not envision administrative mechanisms that would burden agencies with frivolous claims," and that "[a]gencies, in making their determination of whether or not to correct information, may reject claims made in bad faith or without justification, and are required to undertake only the degree of correction that they conclude is appropriate for the nature andtimeliness of the information involved." Id. at 8458. It notes that "an objective process will ensure that the office that originally disseminates the information does not have responsibility for both the initial response and resolution of a disagreement." Id.
On May 14, 2002, DOJ published notice in the Federal Register that its draft guidelines had been posted to its public web site and requested public comments. 67 Fed. Reg. 34475. On October 4, 2002, DOJ published notice in the Federal Register that its final guidelines were available on its public website. 67 Fed. Reg. 6266. The final guidelines are currently available at http://www.justice.gov/iqpr/iqpr.html. See also Pl.'s Ex. E (hereinafter, the DOJ guidelines).
The introduction to the DOJ guidelines notes that the DOJ produces "a variety of information which is provided to the public," including "Departmental briefs in major cases, regulations, business review letters, memoranda, press releases, opinions, research, statistical and special reports, newsletters, and general publications," although "[n]ot all of this information falls within these guidelines." DOJ guidelines. The DOJ guidelines focus on three areas: (1) the basic standard of quality, including objectivity, utility and integrity; (2) the process for reviewing the quality of information; and (3) the process for citizen complaint. Id. As to objectivity, the guidelines state that "DOJ components will ensure disseminated information, as a matter of substance and presentation, is accurate, reliable, and unbiased." Id. As to objectivity, theguidelines provide that "DOJ components will ensure disseminated information, as a matter of substance and presentation, is accurate, reliable, and unbiased." Id.
The guidelines provide that "DOJ will correct information that does not meet its guidel ines or those of OMB based on the significance and impact of the correction." Id. They further state, "Except for those categories of information that are specifically exempt from coverage . . ., these guidelines apply to all information disseminated by DOJ," including "information that an agency disseminates from a web page." Id. The stated exceptions include "information disseminated in the following contexts: . . . press releases, fact sheets, press conferences or similar communications (in any medium) that announce, support or give public notice of information in DOJ." Id.
As required by the IQA and OMB guidelines, the DOJ guidelines set forth procedures for submitting requests for correction of DOJ information. Under the guidelines, "DOJ will normally respond to requests for correction of information within 60 calendar days of receipt." Id. The guidelines provide that "DOJ is not required to change, or in any way alter, the content or status of information simply based on the receipt of a request for correction," and that "[a]ny corrective action will be determined by the nature and timeliness of the information involved and such factors as the significance of the error on the use of the information and the magnitude of the error." Id. Further, under the guidelines, DOJ "need not respond substantively to frivolous or repetitive requests for correction," or "to requests thatconcern information not covered by the guidelines or from a person whom the information does not affect." Id.
"If the requestor disagrees with DOJ's denial of the request or with the corrective action the Department intends to take, the requestor may file a request for reconsideration with the disseminating DOJ component" within forty-five days of DOJ's decision on...
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