JURIS - DOJ rejects TAP FOIA Request

[James Love <love@essential.org>]

Taxpayer Assets Project - Information Policy Note 
Crown Jewels Campaign - JURIS
December 6, 1993


-    DEPARTMENT OF JUSTICE (DOJ) REJECTS TAP FREEDOM OF
     INFORMATION (FOIA) REQUEST FOR FEDERAL JUDICIAL OPINONS
     STORED IN GOVERNMENT'S JURIS SYSTEM

-    REJECTION OF THE FOIA WAS REVIEWED AT HIGH LEVELS OF DOJ

-    DOJ SAYS THAT PUBLIC'S RIGHTS UNDER FOIA CAN BE ABROGRATED
     BY PRIVATE CONTRACTS WHICH RESTRICT PUBLIC ACCESS TO PUBLIC
     RECORDS

-    DOJ DECISION SETS STAGE FOR LITIGATION ON IMPORTANT AND
     UNTESTED QUESTION OF AGENCY ABILITY TO "CONTRACT AWAY"
     PUBLIC RIGHTS OF ACCESS TO PUBLIC RECORDS UNDER FOIA



     On December 2, 1993, the Department of Justice (DOJ)
rejected the Taxpayer Assets Project's request for federal
judicial opinions stored on its JURIS system.  The records in
question are the full text of federal judicial opinions that were
provided to DOJ by West Publishing.  DOJ acknowledges that the
text of federal judicial opinions are not copyrighted by West or
anyone else.  (TAP did not ask for copies of the West Headnotes
or other copyrighted materials.)  However, DOJ asserted that the
TAP request for a "computerized compilation of those decisions,"
was "different," and not in the public domain, since "these
materials were compiled by West," they "are not ours to give."

     The DOJ rejection of the TAP FOIA is based upon two factors. 
First, DOJ claims that the judicial opinions which it stores on
its own computers are not "agency records" under FOIA, and
second, that the records are exempt under FOIA exemption (4),
since disclosure would  "impair the Government's ability to
obtain necessary information in the future," or "cause potential
harm to the competitive position of the person [West Publishing]
from whom the information was obtained."

     DOJ CLAIM THAT THE WEST CONTRACT ABROGATES THE PUBLIC'S
     RIGHTS UNDER FOIA

     The claim that the records are not agency records under FOIA
is based upon two arguments.  The first and most important
assertion is that the materials are not "under the possession and
control" of DOJ, since DOJ signed a contract which prohibits
release of the data to the public.

     This issue is extremely important, not only for JURIS, but
for all federal agencies, since it is common to employ private
contractors to maintain agency records in computer formats.  If
upheld, federal agencies will be authorized to remove large
amounts of public records from the public domain, by entering
into contracts with private parties which alienate the public's
right of access to data under FOIA.

     In the case of the judicial opinions, the records are
generated by federal courts, and often disseminated to West in
electronic formats.  West simply collects the opinions from the
various federal judges and court officials, and provides them to
DOJ for use on the government's JURIS system, which is run from
government owned and operated computers.

     DOJ SAYS THE JURIS JUDICIAL MATERIALS ARE "LIBRARY
     MATERIALS," WHICH ARE NOT AVAILABLE UNDER FOIA

     The second rationale used by DOJ in its deinal is that the
records are "quintessential library materials," and "we do not
believe that the FOIA was intended to make the federal government
a research or copying service for such widely available
material."  This claim is difficult to appreciate, since there
are only three known sources for the records, WESTLAW, LEXIS and
JURIS, and no libraries that we are aware of provide public
access to the judicial opinions in computer formats (except for
highly restrictive licensing agreements with a limited number a
academic institutions which limit access to faculty and staff).

     DOJ CLAIM THAT RELEASE OF THE RECORDS WOULD IMPAIR ITS
     ABILITY TO OBTAIN INFORMATION AND CAUSE HARM TO WEST
     PUBLISHING

     DOJ correctly notes that West Publishing's profits would
suffer if there was broader access to federal judicial opinions,
but this hardly seems a good reason to withhold the records.

     The issue of the impact of the release of the data on the
government's ability to obtain data from private vendors,
however, is an important one.  If we prevail, and public records
must be released under FOIA, federal agencies will likely take a
broader role in publishing electronic copies of records that they
use, which would be a very important and positive result.

     WHAT HAPPENS NEXT

     Several groups have submitted FOIA requests for the JURIS database, 
and the DOJ refussal to release the judicial opinions obtained from West 
now sets the stage for possible litigation.  Tax Analysts may be in court 
as early as this week to seek an injunction to prevent DOJ from erasing 
the data before the issue can be resolved on appeal.  There are indications 
that the issue of FOIA access to JURIS was considered at very high 
levels of DOJ.  Not only did Stephen Colgate personally sign the FOIA
rejection, but a few days ago Webster Hubbell, the Associate Attorney 
General who once worked in Hillary Clinton's law firm in Ark, indicated 
at a lunch meeting that he was reviewing the issue.


     The following is the full text of the DOJ rejection of our
FOIA, which was received by FAX on friday, December 3, 1993.

                 ----------------------------------------
James Love, Director
Taxpayer Assets Project
Box 19367
Washington, D.C 20036
     
Dear Mr. Love:
        
This responds to your Freedom of Information Act (FOIA) request
of October 12, 1993.
         
You requested:

     ...data which is part of the Justice Retrieval and Inquiry
     System (JURIS). Specifically, . .. copies of the full text
     of judicial opinions which were provided to the Department
     of Justice by West Publishing, under a contract to supply
     legal information for the JURIS database.
         
You also specified that your request excludes West editorial
products subject to copyright such as head notes, but includes
copies of the judicial opinions in JURIS.

The JURIS system is an online computerized legal research system
that contains reports of judicial and administrative opinions,
statutes, government regulations, government manuals and other
materials. [1]  A substantial portion of the database contained
on JURIS (including moat federal case law) is procured
commercially from the West Publishing Corporation (West). Under a
contract with the Department, West licenses its databases to the
Department for online use by authorized JURIS users, who pay a
monthly subscription fee and an hourly connect time fee.

Your request is denied for two reasons. First, the materials you
request are not agency records: (a) they have been received from
West pursuant to a contract that does not permit the Department
to provide them to third parties and, as such, are not legally
within the control of the department, and (b) they are library
materials widely available to the public and therefore not
subject to FOIA. Second, even if the databases you request are
records within the meaning of FOIA, they are exempt from
disclosure pursuant to FOIA Exemption 4, 5 U.S.C.  552(b)(4). 
Although unstated in your request, we understand your position to
be that the court decisions and other materials contained in the
West databases were issued by public bodies and are therefore in
the public domain.  We agree with you as a policy matter that the
underlying information, i.e. the court decisions themselves,
should be available and in the public domain. On the other hand,
you have requested something different--a computerized
compilation of those decisions. Had the Department itself
compiled the databases you seek, we would likely make them
available under FOIA. See United States Department of Justice v.
Tax Analysts, 492 U.S. 136 (1989). However, these materials were
compiled by West, and are not ours to give.

1. THE MATERIALS ARE NOT AGENCY RECORDS UNDER FOIA.

     A.   The materials are not under the legal control of the
          Department.

The databases you request are outside of the scope of the term
"agency records" (as used in the FOIA) and, therefore, cannot be
obtained by you through a FOIA request. The Supreme Court has
held that a document is an agency record for FOIA purposes only
if the agency created or obtained the record and maintains
control over that record. Tax Analysts, 492 U.S. at 144-45
(1989). The Department's contract with West does not confer any
rights of ownership in the databases to the Department. Under the
contract, West expressly retains ownership. disclosure under FOIA
of the West databases licensed for use in the JURIS system would
violate the terms of the Department's contract with West, which
explicitly precludes use of the computerized version of the data
outside of the JURIS system, transfer or assignment of the
license, and use of the data by persons other than authorized
users, among other restrictions.[2]  As a licensee of the
databases, the Department does not have the legal control or
authority to release these materials to third parties under FOIA.

     B.   Library materials are not agency records.

While the FOIA itself does not define the term "agency records,"
the Federal Records Management Act in Section 3301 of Title 44
states, in pertinent part, that the term "records":

     includes all books, papers, maps, photographs, machine
     readable materials, or other documentary materials,
     regardless of physical form or characteristics, made or
     received by an agency of the United States Government under
     Federal law or in connection with the transaction of public
     business .... Library and museum materials made or acquired
     and preserved solely for reference or exhibition purposes
     are not included.

The JURIS databases provided by west are quintessential library
materials. we do not believe that the FOIA was intended to make
the federal government a research or copying service for such
widely available material. [3]

     Common sense suggests that a person seeking ... documents or
     materials housed in an agency library typically will find it
     easier to repair to the Library of Congress, or to the
     nearest public library, rather than to invoke the FOIA's
     disclosure mechanisms.

Tax Analysts, 492 U.S. at 136 n. 5 . See also SDC Development
Corp. v. Mathews, 542 F.2d 1116,1120 (9th Cir. 1976) (reaching
comparable result for library reference materials governed by
separate statutory scheme).

2.   THE MATERIALS ARE EXEMPT FROM DISCLOSURE UNDER FOIA
     EXEMPTION 4. 

Even if the databases you requested were agency records, they
would be exempt from disclosure under FOIA Exemption 4,
5 U.S.C.  552(b)(4), because of the obvious harm to west
Publishing Corporation, from whom we obtain them, as well as the
harm to the government. Exemption 4 provides that the FOIA does
not apply to matters that are (1) commercial or financial
information, (2) obtained from a person, and (3) privileged or
confidential. These three requirements are conjunctive.
National Parks and Conservation Ass'n v. Morton, 498 F.2d 765,
766 (D.C.Cir. 1974).   All apply in this case. (1) The
information from West is commercial information. West is in the
business of selling access to its databases through an online
system called Westlaw and in hardcopy in the form of case
reporter series and other books. (2) It is obtained from a
person. For FOIA purposes, a corporation is a person. (3) West
asserts and we agree, as discussed below, that the databases are
confidential.

To determine if information is confidential requires an analysis
of whether release of the information will either, "impair the
Government's ability to obtain necessary information in the
future," or "cause potential harm to the competitive position of
the person from whom the information was obtained," National
Parks, 498 F.2d at 770, or cause harm to some other governmental
or private interest. Critical Mass Energy Project v. NRC, 975
F.2d 871, 879 (D.C. Cir. 1992). All three prongs of this test
apply here. First, if the Department were to release the
databases under FOIA in violation of its contract with west, few
(if any) contractors who are providers of information, be it data
or software programs, would be willing to contract with us. There
can be no doubt that release of the databases would, second,
cause West substantial competitive harm, and, third, loss Of its
market.  West compiles and commercially markets the
information in the data bases. If the databases were made
available by the Department under FOIA, West would lose a
significant portion of its current business. Moreover, current or
potential competitors could produce and sell in competition with
West legal research systems at far lower cost than that incurred
by West in developing its system.

In accordance with 28 CFR  16.5 (b), you may appeal this denial
by writing to the Co-Director, Office of Information and Privacy,
United States Department of Justice, 10th and Constitution
Avenue, N.W., Room 7238, Washington, D.C. 20530, within 30 days
of your receipt of this letter. Both the letter and the envelope
should be clearly marked "Freedom of Information Act Appeal." In
the event you are dissatisfied with the results of any such
appeal, judicial review will thereafter be available to you in
the United States District Court for the judicial district in
which you reside or have your principal place of business, or in
the District of Columbia, which is also where the records you
seek are located.

Finally, we wish to inform you that the Department's contract
with West Publishing Corporation will terminate on
December 31, 1993. Within 30 days thereafter, the Department will
delete all West-furnished databases from its computers and erase
them, in accordance with the terms of its contract with West .

Sincerely,

Stephen R. Colgate 
Assistant Attorney General
 for Administration

FOOTNOTES


[1]  The JURIS system was developed under the mandate of
     Executive Order 12146, July 18, 1979, which provided: The
     Attorney General, in coordination with the Secretary of
     Defense and other agency heads, shall provide for a
     computerized legal research system that will be available to
     all Federal law offices on a reimbursable basis. The system
     may include in its data base such Federal regulations, case
     briefs, and legal opinions, as the Attorney General deems
     appropriate.

[2]  The Department, like all other Federal agencies, has
     numerous licensing agreements with software manufacturers
     that restrict our ability to distribute the software program
     to third parties. This is the case in our license of
     WordPerfect, for example. We believe that you would concede
     our inability to provide licensed software to a FOIA
     request. We see no difference between a request for     
     licensed software and a request for licensed databases. 
[3]  This is not to say that the Department would never release
     library materials under FOIA. It is only to say that we are
     not required by FOIA to do so.
---------------------------------------------------------------------
TAP-INFO is an Internet Distribution List provided by the Taxpayer
Assets Project (TAP).  TAP was founded by Ralph Nader to monitor the
management of government property, including information systems and
data, government funded R&D, spectrum allocation and other government
assets.  TAP-INFO reports on TAP activities relating to federal
information policy.  tap-info is archived at ftp.cpsr.org;
gopher.cpsr.org and wais.cpsr.org

Subscription requests to tap-info to listserver@essential.org with
the message:  subscribe tap-info your name
---------------------------------------------------------------------
Taxpayer Assets Project; P.O. Box 19367, Washington, DC  20036
v. 202/387-8030; f. 202/234-5176; internet:  tap@essential.org
---------------------------------------------------------------------