Tax Analysts files FOIA lawsuit for JURIS data

[James Love <love@essential.org>]

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TAXPAYER ASSETS PROJECT - INFORMATION POLICY NOTE
CROWN JEWELS CAMPAIGN - JURIS

*    Tax Analysts files Freedom of Information Act (FOIA) lawsuit
     in federal court asking for copies of federal judicial
     opinions

*    Department of Justice agrees to preserve JURIS records until
     lawsuit is resolved

*    Suit raises important issues concerning the ability of
     federal agency to "contract away" public access rights under
     FOIA

     
     On January 11, 1993, Tax Analysts, a non-profit publisher of
legal information, filed a suit in federal court asking for
portions of the Department of Justice (DOJ) JURIS database under
the Freedom of Information Act (FOIA).  The dispute concerns
public records which West Publishing provided to the Department
of Justice for use in its JURIS online computer assisted legal
research (CALR) database system.  While the data are public
records and not subject to copyright, West claims that it "owns"
the arrangement of the data, and that DOJ is not free to release
the records under FOIA.
     
     The suit was filed by William Dobrovir, a well known lawyer
who has won a number of notable FOIA cases.  The lawsuit was
assigned by lottery to U.S. District Court Judge Richey -- the
same judge who is currently presiding over an important FOIA case
involving public access to electronic mail records.

     The Tax Analysts (TA) suit notes that the DOJ/WEST contract
for the JURIS records divides the data into "proprietary" and
"non-proprietary" records.  TA asks for all "non-proprietary"
records, which it describes as the decisions of federal judges
and other public documents.  TA makes no claim for "proprietary"
records which include such items as "West-prepared and West-
copyrighted digests," but TA does ask for certain federal rules
decisions and the Military Justice Reporter, which West claims to
be "proprietary."

     The text of the TA FOIA lawsuit is given below.  For more
information, contact William Dobrovir at 202/483-7985.

     jamie love

----------------------------------------------------

                    UNITED STATES DISTRICT COURT 
                    FOR THE DISTRICT OF COLUMBIA


TAX ANALYSTS                       )         Jan 11, 1994
6830 North Fairfax Drive           )
Arlington, VA 22213,               )
                                   )
                   Plaintiff,      )    C.A. No. 94 0043
                                   )
        v.                         )
                                   )
UNITED STATES DEPARTMENT OF        )
JUSTICE                            )
10th & Constitution Avenue, NW,    )
Washington, DC 20530,              )
                   Defendant,      )
___________________________________)

               COMPLAINT FOR ACCESS TO RECORDS AND
          FOR TEMPORARY AND PERMANENT INJUNCTIVE RELIEF
     1. This is an action under the Freedom of Information Act
"FOIA"), 5 U.S.C.  552, for access to and copies of records of
the United States Department of Justice ("DOJ"). The records are
DOJ's electronically stored JURIS legal research database. 
                         Jurisdiction
     2. This court has jurisdiction of this action under 5 U.S.C.
552(a)(4)(B) and 28 U.S.C.  1331.
                           Parties
     3. Plaintiff Tax Analysts ("TA") is a nonprofit corporation
organized and existing under the laws of the District of Columbia
and is qualified as a charitable and educational organization
under Int. Rev. Code  501(c)(3). TA's primary function is the
publication and dissemination to all interested persons of news
and other information concerning the enactment and administration
of the laws of the United States and the several states and the
adjudication of cases by courts and other tribunals of the United
States and the several states.
     4. Defendant United States Department of Justice ("DOJ") is
an agency of the United States government within the meaning of 5
U.S.C.  552(a)(2), (3) and (4)(B).
                         Claims for Relief
     5. DOJ has designed and maintained and possessed for many
years, and possesses today, a computerized, electronic legal
research system for the federal legal community, including its
own lawyers and other personnel and lawyers and other personnel
of other agencies of the United States government. The system is
called JURIS, an acronym for Justice Retrieval and Inquiry
System. (Ex. 1).
     6. JURIS was established initially for DOJ's use. The
President, by Executive Order 12146 (July 18, 1979), directed DOJ
and its head, the Attorney General, to expand JURIS for use
throughout the government legal community. Id. All agency users
share the cost of JURIS operation, database management and
improvements. JURIS is organized into and contains federal case
law material, statutory law, digest material, tax documents,
Federal regulations, Federal manuals, work product material,
legislative histories, federal administrative law opinions and
decisions, treaties, DOJ publications on the FOIA and other such
legal materials. (Ex. 1).
     7. As described in 6 and Ex. 1 JURIS is a comprehensive
compilation of federal law as enacted by the Congress in statutes
issued by agencies as regulations, interpreted and applied by the
courts in actual cases and controversies, or interpreted and
applied by Federal agencies as opinions and decisions in the
adjudication of cases, statements of policy, interpretations, and
staff manuals.
     8. The JURIS electronic database is located at DOJ in
Washington, D.C. For more than 10 years federal, state and local
government attorneys have had access to JURIS by computer or
teletype and have been able to search JURIS by word or concept in
the whole database or by narrower search areas called files, such
as Supreme Court decisions, Court of Appeals decisions, the
United States Code, and many others. (Ex. 1).
     9. On information and belief, until about 1983 the entire
content of JURIS was collected and entered into the JURIS
database by government employees. Around 1983, DOJ contracted
with West Publishing Company ("West") for West to supply a
considerable portion of the contents of JURIS. DOJ and West
executed a second contract on July 1, 1988. The 1988 Contract
(Ex. 2) ("the Contract") provided for initial delivery of a bulk
of material, with annual options to renew through June 30, 1993,
which DOJ exercised. On information and belief, DOJ and West
renewed or extended the Contract by mutual agreement for the six
months from July 1, 1993 to December 31, 1993. On September 27,
1993, West announced to DOJ that it would refuse to renew the
Contract after December 31, 1993. (Ex. 3).
     10. The Contract divides the data that West was to supply
into two categories: data "non-proprietary" to West, and data
"proprietary" to West.
     ll(a). As specified in the Contract the "non-proprietary"
data included and includes case law decision material, i.e.
decisions of the United States Supreme Court, courts of appeals,
district courts, Court of Federal Claims, Tax Court and
bankruptcy courts, the District of Columbia Court of Appeals, the
U.S. Merit Systems Protection Board and the Board of Contract
Appeals, and also included and includes U.S. Tax Court Memorandum
Decisions, the Internal Revenue Service ("IRS") Cumulative
Bulletin ("Cum. Bull."), Tax International Acts, IRS Written
Determinations (private letter rulings), IRS News Releases, IRS
General Counsel Memoranda ("GCM's"), IRS Actions on Decisions and
IRS Technical Memoranda. The price that DOJ was to pay West under
the Contract for these non-proprietary data, through June 30,
1993, was more than $2.6 million.
       (b). All of these "non-proprietary" data are decisions and
other materials issued by public bodies of the United States
government or the District of Columbia. They consist of
authoritative statements of the law to which citizens and
residents of the United States, both individuals and entities,
are required and expected to conform their conduct and
activities. They are final opinions and interpretations within
the definition and meaning of 5 U.S.C.  552(a)(2).
       (c). TA claims a right to these "non-proprietary" data
under FOIA.
     12. As specified in the Contract the "proprietary" data
included and includes West-prepared and West-copyrighted digests,
to wit the Modern Federal Practice Digest and the General Digest
(which covers the various West regional reporter systems like
A.2d, N.E.2d and the like). TA makes no claim for these
"proprietary" data.
     13(a). As specified in the Contract the "proprietary" data
also included and includes the full text of decisions published
by West as Federal Rules Decisions and the Military Justice
Reporter.
       (b). Like the data labeled "non-proprietary" described in
11, these decisions are issued by courts and governmental
entities. They likewise are authoritative statements of the law
to which citizens and residents of the United States, both
individuals and entities, are required and expected to conform
their conduct and activities. They likewise are final opinions
and interpretations within the definition and meaning of 5 U.S.C.
552(a)(2). The Contract does not break down the price of over
$460,000 that DOJ was to pay for all the "proprietary" data, but
on information and belief a substantial percentage, if not most,
of that more than $460,000 was paid for such decisions.
       (c). TA claims a right to these data under FOIA.
     14. On information and belief DOJ and other U.S. government
agencies that have used JURIS themselves have used the data in
JURIS, including the data described in 11 and 13, in preparing
and as authority supporting final opinions in the adjudication of
cases, statements of policy and interpretations of law and
regulation, all of which affect the public and to which members
of the public are expected to conform their conduct and
activities.
     15. As specified in 13, in this action TA seeks access to
the data in JURIS, including the data described in 11 and 13, but
not including the data described in 12. These data, which are the
subject of this action, are (a) materials governed by 5 U.S.C. 
552(a)(2), as set forth in 11, 13 and 14, and (b) were created or
were obtained by DOJ in the legitimate conduct of its agency
functions, were in DOJ's possession, custody and control at the
time TA made its FOIA request, are in DOJ's possession, custody
and control today and therefore are agency records of DOJ within
the meaning of 5 U.S.C.  552(a)(3) and (a)(4)(B).
     16. DOJ has failed to publish rules for public inspection
and copying of JURIS or any portions thereof, as provided in 5
U.S.C.  552(a)(2) and thereby has violated  552(a)(2), and as
alleged in 17 has failed to make the records available in
response to requests that reasonably described such records, in
violation of 5 U.S.C.  552(a)(3).
     17. From time to time persons outside the government have
requested access to data described in 11 and 13, of which a
government body, and not West, is the author. Despite the
character of the data as encompassed by 5 U.S.C.  552(a)(2) and
(a)(3), DOJ has granted none of the requests.
     18. West and DOJ interpret the Contract as requiring that
within 30 days after the expiration of the contract on December
31, 1993, at West's option either DOJ must erase all the data
described in 11 and 13 that West has supplied to DOJ under the
Contract, or DOJ must return the data to West without keeping a
copy. (Ex. 4).
     19. On November 22, 1993, TA submitted to DOJ a FOIA request
for the entirety of the JURIS system database, including the data
described in 11 and 13. (Ex. 5). TA also requested that DOJ
retain and safeguard the 11 and 13 data intact and neither erase
nor return it to West, as described in 18, pending conclusion of
all proceedings on TA's FOIA request including court proceedings.
(Exs. 5 and 6).
     20. TA's purpose in making the FOIA request and in pursuing
this action is to preserve the JURIS system material that
originated in the public domain, to place that material in its
present accessible electronic form into the public domain, to
make it equally available to the public at large and to all state
and Federal government bodies, courts and agencies, including
DOJ, and thereby to facilitate DOJ's continued maintenance and
updating of JURIS for the use and convenience of the public and
all other government bodies. (Ex. 7).
     21. On December 3, 1993, DOJ responded to TA's FOIA request
described in 19. (Ex. 8). In that response and in a follow up
letter of December 6, 1993 (Ex. 9), DOJ denied TA's FOIA request
for the data described in 11 and 13, denied TA's request to
maintain and safeguard the data after December 31, 1993 (Exs. 8,
9), and responded equivocally to, and thereby denied, TA's
request for the rest of JURIS. On December 8, 1993, DOJ agreed to
retain the data without erasure, but only until January 31, 1994.
(Ex. 10). On January 10, 1994, DOJ aqreed to maintain and
safeguard the data intact, without erasure, until the conclusion
of this lawsuit and all appellate review. (Ex. 11).
     22. On December 8, 1993, TA filed its administrative FOIA
appeal with DOJ's Office of Information and Privacy ("OIP"), as
DOJ's regulations provide. (Ex. 12). OIP failed to rule on TA's
appeal by the statutory due date for its ruling, January 10,
1994, and has informed TA that DOJ's FOIA appeal backlog is
between three and four months. TA has exhausted its administra-
tive remedies. DOJ is improperly withholding the data from TA. 
                         Relief Requested
     23. TA requests this court to enjoin DOJ permanently from
destroying or erasing any of the data in JURIS, to enjoin DOJ
from continuing to withhold JURIS from TA, to order DOJ to
produce to TA the entire JURIS database except the data described
in 12, and to award TA the costs and reasonable attorney's fees
of this action.

                                   Respectfully submitted,



                                   WILLIAM A. DOBROVIR
                                   D.C. Bar No. 030148 
                                   1614 20th Street, NW 
                                   Washington, DC 20009 
                                   (202) 483-7985

January 11, 1994                   Attorney for Plaintiff
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