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Citizens ask Reno and Rivlin for Public Comment on CALR procurement
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TAXPAYER ASSETS PROJECT - INFORMATION POLICY NOTE
CROWN JEWELS CAMPAIGN - Juris, Legal Information
August 11, 1994
- More than 100 citizens write to Attorney General Reno and
OMB Director Alice Rivlin asking for a formal public
"Request for Comment" (RFC) on the Department of Justice
procurement for Computer Assisted Legal Research (CALR)
services. Letter was organized by Eleanor Lewis of the
Government Purchasing Project (Eleanor@csrl.org).
- Broad based coalition of publishers, technology firms,
librarians, academics, non-profit organizations and citizens
ask the federal government to use its procurement of CALR
services to create a public domain system of citation for
federal judicial opinions, and to place electronic copies of
the judicial decisions into the public domain.
- The Government Printing Office (GPO) signs the letter to
Reno and Rivlin, supporting a procurement that will put the
case law and the citation system into the public domain.
- The proposed procurement will last five years, and is
expected to involve from $50 to $100 million in public
funds.
- On July 28, DOJ officials met with a group of data users,
researchers, librarians, publishers, and Congressional and
GPO officials, and told the gathering that DOJ would publish
a CALR procurement in August. DOJ said that it had rejected
requests that the procurement require a public domain
citation system or that the records of judicial opinions be
placed in the public domain, and that it expected that only
two firms [West Publishing and Mead Data Central, which have
a "secret" out of court agreement regarding the
dissemination of legal information] would be able to bid on
the contract. (Notes of the July 28 meeting will be
published shortly on tap-info).
- Letter is part of public campaign to prevent the Department
of Justice (DOJ) from publishing a "Request for Proposal"
(RFP) for CALR services until it first accepts public
comments on the procurement, including comments from
independent publishers and technology companies on changes
that would make the procurement of CALR services more
competitive.
- Tough political battle is expected, as West President Vance
Opperman is political powerhouse. Opperman describes
himself as personal friend of Vice-President Albert Gore,
served this year as campaign finance chairman for Senator
Dianne Feinstein (D-CA, member of Senate Judiciary
Committee, Subcommittee on Patents, Copyrights and
Trademarks, and Subcommittee on Technology and the Law), and
is major fundraiser for democrats. According to the
Washington Post and Common Cause, Vance Opperman and his
father gave at least $150 thousand in soft money to the
democratic national committee since 1992, and the West PAC
gave more than $100 thousand in contributions to members of
congress in the previous election cycle. Campaign
contributions are concentrated on the House and Senate
Judiciary Committees. West also sponsors annual $15,000
cash prize for federal judges (the Devitt Distinguished
Service Award, given to more than a dozen federal judges
since 1982). [Opperman can be reached at 612/687-7000, or
610 Opperman Drive, St. Paul, MN 55164].
- TAP has written the entire membership of the Senate
Judiciary Committee asking for assistance in obtaining
public comment on the proposed CALR procurement.
james love / internet love@tap.org; voice: 202/387-8030.
A copy of the August 8, 1994 letter to Reno and Rivlin follows:
------------------------------------------------
August 8, 1994
Ms. Janet Reno
Attorney General
U.S. Department of Justice
Washington, DC 20530
(fax 202/514-4371 or 4372)
Ms. Alice Rivlin
Director
Office of Management and Budget
Washington, DC 20530
Dear Attorney General Reno and OMB Director Rivlin:
We are writing to urge the Department of Justice (DOJ) not to
issue its anticipated Request for Proposal (RFP) for computer
assisted legal research (CALR) until it first issues a Request
for Comment (RFC). The pending CALR procurement is very
important because it will determine whether the DOJ will repeat
its past errors in the future by continuing to give ownership of
its case law decisions to West Publishing Company. The
alternative is for the government to own its case law, to have a
vendor, at a modest cost, insert paragraph numbers which become
the universal pinpoint citation form and to sell copies of the
data to all vendors who want it. Vendors' products would compete
on the basis of the value they add to the basic cases and not by
controlling access to the case law.
The DOJ officials in the Justice Management Division who are
working on this procurement have stated they will issue an RFP
for CALR services in August. We believe this 5-year procurement
contract will be deficient in several important ways:
1. Private Citation System. The contract will not require the
contractor to use a public domain system of citation to
federal judicial opinions. At present one firm, West
Publishing, claims that it "owns" the page numbers of
judicial decisions that it publishes. Since West is the
official reporter for many federal courts, West has a
monopoly over an essential part of the system of citation to
federal law.
2. Private Ownership of Judicial Opinions. DOJ will allow the
bidder to retain a proprietary ownership of the text of
federal judicial opinions. DOJ made this mistake earlier in
the JURIS system, which gave West the ability to pressure
the government to shut down JURIS in late 1993. Presently,
only two firms, West Publishing and Mead Data Central, own
copies of the database of historical copies of federal
judicial opinions in digital form. As a result of West's
suing Mead, there exists a secret settlement agreement which
gives Mead the limited right to use the West page numbers
and which reportedly may restrict Mead's right to provide
third parties with copies of the historical records of its
database.
We urge the DOJ to learn from its past mistakes. Starting
with this procurement contract, the DOJ should own the
federal case law. One vendor has offered for $5 million to
key in to electronic form the last 20 years of federal case
law not using West's data to create a publicly owned
database for the DOJ.
3. Contract Bundling. The procurement will be written so that
the winning firm will have to offer a complete menu of CALR
databases. Only two firms, West and Mead, can possibly bid,
and Mead's ability to bid may be constrained by its secret
settlement of the West-Mead antitrust case.
DOJ was asked by several small businesses and non-profits to
divide the procurement, so they can bid on various parts of it.
Several firms have indicated that they are prepared to bid on
smaller sections of the service, such as online access to Supreme
Court decisions, specialized databases such as tax-related case
law, or prospective case law. These companies also agree to
provide DOJ with public domain citation systems and a non-
proprietary copies of the case law, which would be available to
the public and other vendors.
Among the groups questioning the DOJ's procurement are:
1. American Association of Law Libraries (AALL) who strongly
support using a system of citation that can be put in the public
domain. The AALL would also like to see all case law put into
the public domain.
2. An 80-member consortium of universities and computer
companies working to develop computer technology and voice
recognition software programs for use by lawyers and judges. To
develop these technologies, the researchers need inexpensive
electronic access to millions of pages of legal text, which can
even be out of order, so it cannot be used by others. Only West
and Mead have this information and they refuse to give it to the
consortium at less than the market price, which is prohibitive.
It is believed Mead and West are also developing speech
recognition technologies for lawyers.
3. Many businesses who want to use the latest electronic
technologies to produce new and better products for lawyers and
researchers using case opinions.
4. Public interest groups who believe that data and records
created with public monies should not become the property of
private companies and resold to the government and the public at
very high prices. These public records should be easily and
inexpensively available to the public in libraries and through
the Government Printing Office (GPO) as well as through competing
private vendors who buy the information from the GPO and add
value to it.
Most importantly, government procurement is different from all
other purchases. In addition to providing services and goods
needed to operate government agencies, it should be used, and
historically has been used at various times, to benefit all
consumers by causing changes in the general market place. The
federal government is the largest consumer of CALR; spending over
$50 million annually. If it retains ownership of federal court
decisions, it will change the marketplace for all purchasers of
federal case law band very quickly for all state case law.
Public ownership permits innovative companies to use this data in
new and different ways, increasing the products available and
reducing prices.
State Supreme Courts are eliminating West's monopoly over their
case law. On December 17, 1993, the Supreme Court of Louisiana
issued an order requiring a "uniform public domain citation form"
with a parallel citation to West's Southern Reporter for all
opinions and actions issued after December 31, 1993. The
citation form consists of the case name, docket number, court
abbreviation and month, day and year of issue. Pinpoint cites
are to the page numbers designated by the court and parallel West
citations are not required. In May 1994, the Colorado Supreme
Court started permitting the use of paragraph numbers as an
alternative to West's page citations. The Wisconsin State Bar
Association's Board of Governors recommended in June 1994 that
Wisconsin adopt a vendor neutral and medium neutral citation
system using numbered paragraphs for Wisconsin case law. They
also urge Wisconsin to establish an official repository of final
opinions which will be owned by the State. Vendors will compete
based on the value they add, not by controlling access. Similar
changes are also being considered in Iowa, California, Utah and
Illinois. By the time the proposed DOJ solicitation expires in
1999-2000, it appears that the DOJ will be far behind the
learning curve and unable to catch up quickly or cheaply because
they do not own their own case law.
At this time we are only asking that DOJ be prevented from
issuing an RFP for CALR without first issuing a request for
comment (RFC) on the procurement. Then DOJ can fully consider
public comments about measures which will improve the
procurement. This is little to ask given the great public
importance of this matter and the enormous total cost of this
procurement -- $50 - 100 million over five years.
Sincerely, (Affiliations are for identification purposes only)
Eleanor Lewis John Fisher
Government Purchasing Project Manhattan West Coordinator
PO Box 19367 Tenants Election Watch/Tenants
Washington, DC 20036 Unity Coalition
202/387-8030; 305 W. 45th St. #6-D
eleanor@essential.org New York, NY 10036
jbfisher@pipeline.com
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