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JURIS FOIA from TAX Analysts
TAP-INFO Internet Distribution List
TAXPAYER ASSETS PROJECT
CROWN JEWELS CAMPAIGN - JURIS
November 23, 1993
- TAX ANALYSTS, PUBLISHER, SUBMITS FOIA FOR JURIS DATABASE
- ATTORNEY GENERAL JANET RENO ASKED TO PROTECT JURIS RECORDS
FROM ERASURE
- FIRM INTENDS TO SEEK INJUNCTION IN FEDERAL COURT IF
DEPARTMENT OF JUSTICE DOES NOT PROVIDE MATERIALS BY DECEMBER
7, 1993
On Monday, November 22, 1993, Washington lawyer William A.
Dobrovir filed a Freedom of Information Act (FOIA) request to the
Department of Justice (DOJ), asking for the JURIS database. The
FOIA request is filed on behalf of Tax Analysts, a publisher of
tax law information.
Tax Analysts is also the firm that has presented DOJ with an
unsolicited proposal to restore the federal caselaw which West is
asking DOJ to erase from its computers, and place the records in
the public domain, while developing a non-proprietary system of
citations and page numbering.
The FOIA request is broad, and includes all records in
JURIS, including items West may claim to be copyrighted,
including West headnotes and syllabus materials, the
"arrangement" of federal cases included in its published court
decisions, and the page numbers of federal cases. The broad
nature of the request is intended to prevent DOJ from claiming
that the non-copyrighted JURIS records, such as judicial
opinions, cannot be separated from the copyrighted materials. In
asking for everything, Tax Analysts maintains that FOIA requires
disclosure of all agency records in its possession, including
copyrighted materials, and that West can (and in the past has)
resort(d) to separate remedies for alleged violations under the
copyright act. The FOIA request also notes that Tax Analysts is
prepared to contest certain West copyright claims to the
arrangement and pagination of federal caselaw, under the 1991
Supreme Court Decision, Feist Publications, Inc. v. Rural
Telephone Service Co. Inc., in which the Supreme Court ruled that
telephone directories could not be copyrighted.
Dobrovir has also written Attorney General Janet Reno,
asking that she personally "affirm in writing" that the JURIS
records will not be erased or returned, until the FOIA request
can be resolved. The letter notes that DOJ officials have
refused to maintain the records, "unless so ordered by a court."
Dobrovir is one of the nation's leading FOIA lawyers, having
successfully litigated U.S. Department of Justice v. Tax
Analysts, a landmark FOIA case decided by the U.S. Supreme Court
in 1989, which required DOJ to provide Tax Analysts with copies
of all federal court cases involving tax matters.
The text of letter to Janet Reno and the FOIA request are
given below:
-----------------------------------------------
letter to Janet Reno
November 22, 1993
Honorable Janet Reno
Attorney General of the United States
U.S. Department of Justice
Room 4400
10th & Constitution Avenue, NW
Washington, DC 20530
Dear Madam Attorney General:
The attached Freedom of Information Act (~FOIA~) request
seeks access to the Department of Justice's JURIS system before
its contents are largely erased or returned to West Publishing
Company, which I am told by officials of the Department,
specifically Stewart Frisch, Esq., Acting General Counsel of the
Department, is planned on or about December 31, 1993.
As also requested in VI of that request, and for the
reasons stated, my client Tax Analysts and I ask you personally
to affirm in writing that no such erasure or return will take
place until the proceedings on this FOIA request, including court
relief if necessary, are concluded. Mr. Frisch has informed me
that the Department's position, at least as of today, is that it
will not agree to maintain the status quo in this way, unless so
ordered by a court. I therefore appeal to you to review the
Department's position and avoid litigation on that issue until
the FOIA merits are decided.
Respectfully,
William A. Dobrovir
----------------------------------
the FOIA request
November 22, 1993
Ms. Patricia D. Harris
FOIA/PA Section
U.S. Department of Justice
Justice Management Division
Aerial Rios Building, Room 2232
12th & Pennsylvania Avenue, NW
Washington, DC 20530
Dear Ms. Harris:
On behalf of my client, Tax Analysts, under the Freedom of
Information Act ("FOIA"), 5 U.S.C. º 552, I request a copy of the
electronic database known as JURIS, the Justice Retrieval and
Inquiry System. I attach a copy of a brochure published by the
U.S. Department of Justice ("DOJ") that describes JURIS. We
request the database in the form described in the brochure, p. 1,
as "the most popular," accessed by a "menu driven system from a
personal computer." We request the database in computer tape
format. We also request "the software on a ... 3 l/2 diskette,"
the "self paced tutorials" and all updates as described on p. 3
of the brochure.
II.
The nature of the data requested is such that none of the
exemptions in 5 U.S.C. º 552(b) are applicable. Everything in the
database is indeed either in the public domain (e.g., opinions of
the courts and administrative agencies, tax materials, statutory
materials, legislative history, Code of Federal Regulations,
etc., as listed on pp. 4 and 5 of the brochure), or is published
(e.g., the materials listed under "Digest-West Headnotes" on p.
4). To the extent that material is considered exempt under
Exemption 5 as work product (e.g., materials listed as such on p.
5), please so indicate if you intend to claim exemption.
III.
I understand that certain material, including headnote and
syllabus material copyrighted by West Publishing Company ("West"
or the "West" material), may be subject to a claim by West that
it is not subject to the FOIA because it is copyrighted. As you
are aware, the Department takes the position that the Copyright
Act does not confer exemption under FOIA Exemption 3. See U.S.
Department of Justice, Office of Information and Privacy, FOIA
Guide & Privacy Act Overview ("DOJ FOIA Guide"), Sept. 1992
edition at 75-76.
I also understand that West may claim that "West" material,
e.g. citation forms and headnotes, and perhaps even its
pagination, are "proprietary"; or that West may claim that under
its contract with DOJ all of the data it supplied under the
contract, including federal court and agency generated material,
"belongs" to West and must be returned.
We take vigorous issue with the proposition that any such
claim could defeat a request under the FOIA, whatever may be
their validity under the contract. The JURIS system in its
entirety or in its component parts meets the Supreme Court's test
for "agency records": it was "obtained by the agency," the
Department of Justice, and it is "under agency control at the
time of [this] request." DOJ FOIA Guide, supra at 9, id. n. 12
and cases there cited, in particular U.S. Department of Justice
v. Tax Analysts, 492 U.S. 136 (1989). Moreover, the DOJ-West
contract, H-7, recognizes and specifically provides for
disclosure by agencies under the FOIA:
In the event a user is required to produce
JURIS printouts containing Data and Information
pursuant to a court order or under a
controlling legal precedent in a [FOIA] action,
the user may do so provided that [West's
copyright appears on each page].
IV.
We wish to simplify and expedite this request. Therefore, it
is made in two parts, and we request a separate response to each
part:
1. The portion of the JURIS database that consists of
material that originated with a United States or state government
source, such as federal district court, appellate court and
Supreme Court decisions, legislative materials, state court
decisions, IRS decisions and other materials, other federal
agency materials, and the like, including (a) material compiled
by DOJ itself and (b) material transmitted to DOJ by West under
contract number 8C-I-WCF-0040 (July 1, 1988), and all extensions
thereof.
2. The rest of the JURIS system, i.e. material on which West
colorably claims a copyright. I use the word "colorably"
advisedly. While West's headnote and syllabus material may have
the requisite originality to support copyright, the mere division
of federal court decisions into pages, dictated by column length,
page size and type font, is not copyrightable under the rule of
Feist Publications Inc. v. Rural Telephone Service Co. Inc., 499
U.S. ____, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991).
I make it clear that by distinguishing between the two types
of data we do not concede that FOIA does not compel disclosure of
copyrighted matter in government agency hands. FOIA does not
police copyright violations. Should West believe that after FOIA
disclosure a requester's use of West copyrighted matter violated
the Copyright Act, West has (and in the past has resorted to)
remedies under that Act.
V.
Tax Analysts will pay the costs of copying the material
requested. Tax Analysts is a media requester entitled to
treatment as such for purposes of search and review charges
(which there should not be in any case). See Tax Analysts v. U.S.
Department of Justice, 965 F.2d 1092, 1095-96 (D.C. Cir. 1992).
VI.
Finally, as set out in the attached letter to the Attorney
General, Tax Analysts requests, pending final resolution of this
FOIA request and any lawsuit relating to it, that DOJ maintain,
and neither erase nor return to West, the data in the JURIS
system. In the absence of a written undertaking to do so, we will
be compelled to seek immediate injunctive relief, to prevent
destruction of rights under the FOIA. See Kissinger v. Reporters
Committee, 445 U.S. 136 (1980).
VII.
We request a response within the statutory period of 10
working days, i.e. by the close of business on Tuesday, December
7, 1993. Please fax the response to (202) 483-7978.
Sincerely yours,
William A. Dobrovir
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