Congress to exempt contractor records from FOIA

[James Love <love@tap.org>]

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TAXPAYER ASSETS PROJECT - INFORMATION POLICY NOTE
CROWN JEWELS CAMPAIGN - Juris, Legal Information
February 9, 1995

     TAP ASKS CONGRESS TO STRIKE PROVISION IN HR 830 THAT WOULD
     ELIMINATE PUBLIC'S RIGHTS UNDER FOIA TO ALL CONTRACTOR
     GENERATED COMPUTER RECORDS.


The following is a copy of the letter we sent to Representative
Clinger (R-PA) this morning on the West provision in HR 830.  Our
comments address the impact of the provision on the public's
rights under the Freedom of Information Act, as well as the
impact on copyright laws and government subpoena power.  The full
committee is expected to act on the bill friday morning at 9am. 
We expect an amendment to be offered to strike 3518(f), but the
outcome is very much in doubt.  CALLS AND FAXES TO THE COMMITTEE
MEMBERS ARE VERY MUCH NEEDED.  A list of the committee members,
telephone numbers and faxes can be obtained by email or fax from
Michael Ward (mike@tap.org, 202/387-8030).  Part of the problem
is the fact that few of the Members of Congress understand
computer technology enough to understand the dramatic impact this
amendment will have on the public's right to know.   jamie love
(love@tap.org; 202/387-8030)


                          Taxpayer Assets Project
                   P.O. Box 19367, Washington, DC  20036
      voice: 202/387-8030; fax: 202/234-5176; internet: love@tap.org


February 9, 1995

Honorable William Clinger, Jr.
Chair, Committee on Government
  Reform and Oversight
U.S. House of Representatives
Washington, DC  20515
via fax (202/225-4681)

Dear Representative Clinger:

This letter expresses our opposition to the so called "West
Provision" in HR 830.  Specifically, we are asking the Committee
to eliminate Sec. 3518 (f).  As you know, this provision is new,
and was only available to the general public yesterday.  While
other parts of HR 830, the "Paperwork Reduction Act of 1995" may
be controversial, in general the issues have been debated for
several years and Congress and the public is well aware of the
issues.  However, by inserting Sec. 3518 (f) into the bill, a
number of very new issues have been raised which radically
diminish the public's rights under the federal Freedom of
Information Act and under copyright law.  The West provision will
also lead to an enormous new area of complexity in the government
as agencies will be forced to negotiate ever more complex
contracts identifying the governments rights to taxpayer funded
databases.  Moreover, the provision will apparently restrict even
the government's subpoena powers in law enforcement actions,
among other unintended consequences.

Section 3518 (f) begins with a provision that preempts "any other
law."  The Section then continues in Sec. 3518 (f)(1) to state
the obvious, namely that persons can use public information for
profit or non-profit activities -- a fact which is not in dispute
as far as we know.  This is the good news.  However, in Sec. 3518
(f)(2), the provision says that "if any person adds value" to
public information, the government "shall not have any right to
obtain, collect, acquire, disseminate, use or convert --  (A) the
resulting data, databases, or other information product, or (B)
any method used by the person to identify such resulting data,
database or information product," except under terms that are
expressly agreed to by such person.


1.   Sec. 3518 (f) Eliminates the right of the public to obtain
     government computer records when private contractors provide
     value added services to the government.

Section 3518(f) does not distinguish between persons who add
value to government data on their own initiative and those who do
so under a government contract, at taxpayer expense.  The term,
"adds value" is an extremely broad term, and will apply in
virtually all cases where private firms perform data processing
operations for the government.  By simply reformatting data,
storing records in databases, key punching records, or performing
the most routine data processing functions, the private
contractors will become the virtual owners of the "value added"
products, which in many cases will be such items as book keeping
systems, payroll records, scientific databases, copies of agency
memoranda or rules, or any number of other items.  Today the
public can seek access to such records under the Freedom of
Information Act (FOIA).  When private contractors are engaged by
the government, courts evaluate FOIA claims by looking at such
issues as whether or not the agency has possession and control of
the records, or if they are exempt under the many FOIA exemptions
for commercial-proprietary information, privacy, law enforcement
or national security.  However, Section 3518(f), by preempting
all other federal laws, would exclude these records from the
FOIA, vastly decreasing the public's rights to get information
from the government.  Indeed, only if the agency takes the
initiative to obtain an explicit contractual agreement that
permits disclosure would the records be available to the public. 
Thus, in an era of downsizing and a greater reliance upon private
contractors, citizens will have to rely upon the government
bureaucrats to negotiate public disclosure rights every time a
new contract is written.  This will predictably lead to greater
government secrecy and a proliferation of exclusive and
monopolists arrangements where the only "usable" or still
remaining copy of government records will be in the possession
and control of private parties.   This is a startling and
shocking result.  The term "agency" is defined in the Sec.
3502(1) to include all federal executive branch agencies,
including the Executive Office of the President, any independent
regulatory agency or any Military Department. 

Moreover, by preempting all other federal laws, it appears as
though this provision would even prevent access to such records
under subpoena, including a Congressional subpoena, unless
disclosure was provided for by contract with the private party. 
Suppose, for example, that Congress was investigating a case of
fraud involving a high official, but that key government records
were stored in a database operated by a private corporation that
refused to "explicitly" agree by contract to disclosure.


2.   Section 3518(f) would extend a quasi copyright type
     protection to private parties, even when public records are
     involved.

Under current copyright law, no one can copyright the works of
federal employees.  However, if a private government contractor
becomes the "owner" of the formatted records Sec. 2518(f), by
"adding vale" to raw data (which in many cases may no longer be
available), the government could not "obtain, collect or acquire"
a copy of the database or records, except under terms agreed to
by the private party.  This would, it seems, preclude any
government agency from purchasing a copy of the database from any
of the firm's competitors, without the permission of the
contractor, even if other parties had copies of the database. 
For example, suppose that LEXIS, a company which operates the SEC
EDGAR dissemination project, refused to give federal agencies the
right to "obtain, collect or acquire," SEC records from the free
Internet dissemination project run by New York University, or
services run by LEXIS competitors such as Disclosure, Inc.  Would
the government be forced to buy online access from LEXIS and only
LEXIS?

As you know, West Publishing, a Minnesota Publisher, is lobbying
for Sec. 3518(f) in order to frustrate a FOIA case involving the
Department of Justice database called JURIS, which for a time
employed West as a contractor (and paid West more than $3
million).  Tax Analysts, a Virginia publisher of tax materials,
is seeking access to the judicial opinions in the JURIS database,
and wants to put the information into the public domain.  West
claims the information cannot be disclosed under FOIA, but has
not succeeded in obtaining a victory in the litigation, due in
part to the fact that the contract that West signed does not
appear to preclude public disclosure of the JURIS records.  West
may or may not have a problem in the JURIS FOIA litigation, but
that is not a good reason for Congress to rush through this
poorly conceived assault on the public's right to know.


Sincerely,



James Love 
Director
Taxpayer Assets Project

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