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TAP APPEAL ON JURIS FOIA
Taxapayer Assets Project
Crown Jeweles Campaign - JURIS
January 11, 1993
The following is the text of the TAP administrative appeal on
our FOIA request for elements of the JURIS database. On a related front,
West Publishing has told DOJ (in a letter dated January 7) that West is
willing to have DOJ retain a copy of the data it provided for JURIS until
the Tax Analysts FOIA case is resolved.
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December 28, 1993
Mr. Richard L. Huff
Mr. Daniel J. Metcalfe
Office of Information and Privacy
United States Department of Justice
10th and Constitution Avenue, N.W.
Room 7238
Washington, DC 20530
RE: Freedom of Information Act Appeal
Dear Mr. Huff and Mr. Metcalfe:
This letter is an appeal of the Department of Justice (DOJ)
denial of my October 12, 1993 FOIA request for certain materials
stored in the JURIS database, dated December 2, 1993, in a letter
signed by Stephen Colgate.
The denial of my FOIA request was based upon three factors.
First, Mr. Colgate asserted that the records that I requested
were not agency records because they were not under the legal
control of the Department. Second, Mr. Colgate asserted that the
records were not agency records because they were "library
materials." Third, Mr.Colgate asserted that the records were
exempt from disclosure under FOIA exemption 4. I will respond to
each of these points.
1. The records are under the legal control of DOJ.
According to the DOJ/WEST contract that was provided to us under
an earlier FOIA request, DOJ has the rights to provide JURIS
records under FOIA, so long as DOJ includes a statement which
indicates that West may claim a copyright of the data. More
generally, however, we argue that DOJ cannot "contract away" the
public's rights under FOIA. We have requested copies of the text
of judicial opinions. Judicial opinions have been collected and
stored in JURIS since 1971, years before West ever became a
subcontractor on JURIS. The information is used by DOJ to carry
out its official duties, and is not subject to copyright, - not
by West, not by DOJ, not by anyone. Regardless of promises that
DOJ asserts that it has made West, it cannot abrogate the
public's rights under FOIA. The consequences of DOJ's assertion
that it can contract away the public's rights under FOIA is
startlingly broad. Suppose, for example, that Oliver North had
given General Secord the "commercial rights" to the Iran/Contra
computer records. Would these records have then been off limits
to FOIA? As federal agencies increasingly use private
contractors to gather and store data, it is extremely important
to establish that FOIA gives the public unconditional rights to
receive agency records, regardless of how the data is obtained.
This is particularly true here, where the records themselves are
clearly public documents -- the text of federal judicial
opinions.
For most of these records, there is no other government source of
the data in electronic formats. The federal courts that do
disseminate judicial opinions electronically due not provide
access to historical records. Most courts only provide access to
records for one year or less, and electronic dissemination
programs are relatively new, given the body of historical
records. Moreover, in jurisdictions where West Publishing is the
"official" reporter of published opinions, it is often impossible
to obtain versions of the corrected versions of the opinions
directly from the Courts themselves. Thus, JURIS represents the
only government source of the corrected copies of many federal
judicial opinions, and to deny access to JURIS is to deny the
public access to public documents which are fundamental to a
democracy.
2. The Records are not library materials.
It is ludicrous for DOJ to assert that the JURIS records are
"library materials." I have requested the JURIS records which
are the text of federal judicial opinions. There are no
libraries which we have access to which have this database
available to the general public in electronic formats. While it
is true that West Publishing and Mead Data Central sell access to
these materials, and often have vendor relationships with
libraries, the commercial sales of these public records does not
satisfy the public's right and need to obtain access to this
important government information which is the law of the land.
3. The JURIS judicial opinions do not qualify for exemption 4.
DOJ asserts that if it provided public access to JURIS under FOIA
it could not obtain the records from contractors. In fact, DOJ
obtained the same records itself before it entered into a
relationship with West Publishing. Moreover, DOJ was recently
provided at least one unsolicited proposal by a contractor who
offered to provide DOJ with free and clear title to the
electronic versions of federal judicial opinions. The source of
these records isn't West, but the federal judiciary, a public
agency that is funded by the taxpayers. DOJ cannot argue that
public access to judicial opinions will deprive the government
access to these public records. DOJ is only arguing that it
should be allowed to "barter" the public's right to know against
the price it pays for data processing services. We do not
believe the agency has the legal right to trade our rights under
FOIA for lower cost data processing services, any more than DOJ
would have the right to sell the public's civil or criminal
rights to the highest bidders.
DOJ says that release of the records would cause West competitive
harm, but that alone does not justify withholding the records.
Exemption 4 is designed to limit the release of proprietary
company data. The records in JURIS are available to 15,000
federal employees, published widely by West and LEXIS, and are
public records in federal court houses. West may indeed benefit
from a lack of ready public access to these public records, but
that does not justify a denial of public access under FOIA. West
does not "own" the words written by federal judges in deciding
the public's business in the federal courthouses. West has no
legal monopoly on the law of the land, and West has no right to
be shielded from competition from companies who seek to broaden
public access to the these most public of public documents.
Thank you very much for considering this appeal of the DOJ denial
of our FOIA request.
Sincerely,
James Love
Taxpayer Assets Project
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