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TAXPAYER ASSETS PROJECT - INFORMATION POLICY NOTE CROWN JEWELS CAMPAIGN - Juris, Legal Information February 8, 1995
UPDATE ON SPECIAL INTEREST WEST PROVISION IN PAPERWORK REDUCTION ACT (HR 830), AND LETTER FROM TAX ANALYSTS REGARDING WEST FOIA LITIGATION OVER PUBLIC ACCESS TO JURIS DATABASE
jamie love, TAP (love[_at_]tap.org; 202/387-8030)
William A. Dobrovir, P. C.
65 CULPEPER STREET
WARRENTON, VA 22186 TEL
(703)341-2183
FAX (703)341-4329
SPERRYVILLE, VA TELEPHONE
February 7, 1995
BY TELECOPY (202) 395-5167 & MAIL
Mr. Bruce W. McConnell
Chief, Information Policy & Technology Branch
Office of Information & Regulatory Affairs
Office of Management & Budget
New EOB 10236
Washington, DC 20503
Re: H.R. Bill No. ,104th
Cong., 1st Sess. (1995) (The
Paperwork Reduction Act) Sec. 3518 (f)
Dear Mr. McConnell:
Yesterday my client, Tax Analysts ("TA"), a major electronic publisher of federal and state tax materials, learned of the proposed Sec. 3518 (f) of the draft Paperwork Reduction Act. The draft Act is dated January 31, 1995. Hearings were held on it today before the Subcommittee on National Growth, Natural Resources and Regulatory Oversight (Rep. David McIntosh (R.), IN. Chair) of the House Committee on Government Reform and Regulatory Oversight. It is scheduled for markup on Thursday. It is apparently fast-track, "Contract With America" legislation.
I write to call to your attention the likely effects if that
provision were to become law. Enactment will harm the public
interest and specifically will foreclose an important issue
pending in the federal courts. We have been told that Sec. 3518
(f) was introduced at the instance of West Publishing Company,
the quasi-monopolist of the law publishing industry in the United
States. The sponsor is Rep. Gil Gutknecht (R.) of Minnesota.
(The section was drafted by Kevin Sabo, Majority Counsel of the
subcommittee.)
The lawsuit that Sec. 3518 (f) would affect is one brought by TA. The case is Tax Analyst v. U.S. Department of Justice and West Publishing Company, C.A. No. 94-0043 (GK), which we call, for short, the JURIS suit. TA's success in that lawsuit would go a long way toward ending West's monopoly. It would result in bringing into the public domain an electronic database that contains the case law of the federal courts decided from 1789 through 1993.
Section 3518(f) of the draft bill reads:
"(f) Notwithstanding any other provision of this chapter
or any other law --
"(1) any public information that an agency discloses,
disseminates, or makes available to the public may be used
by any person for profit or nonprofit activities; and
"(2) if any person adds value to the public
information, the Federal Government shall not have any right
to obtain, collect, acquire, disseminate, use, or convert --
"(A) the resulting data, database, 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.
The Chairman's draft of the Section-By-Section analysis
states:
Section 3518 contains a new subsection which is intended
to clarify that when public information, as defined in
Section 3502, is disseminated or otherwise made available to
the public, it ceases to be public information, when a
person adds value to the public information. This resulting
information product, including data, database, or method
used to identify the data, database or information product,
also ceases to be public information, and the government
cannot claim a right to reacquire or use the resulting
information product without the consent of the person adding
value. The new subsection is designed to encourage the
profit and non-profit sectors to make the widest possible
use of public information released by the government.
The key provision is Sec. (f)(2)(A). It would remove from
the public domain, and exempt from public access under the
Freedom of Information Act ("FOIA"), 5 U.S.C. Sec. 552 (b)(3),
agency records to which any private vendor or publisher had
"add[ed] value." This would happen even where that added value
was added at government i.e. taxpayer, expense, and the
"resulting... product" was purchased by the government and became
an agency record under the FOIA. The section-by-section analysis
says simply that in such circumstance "public information ...
ceases to be public information."
As you know, "value" can be added to electronic data almost instantly and almost at no cost; for example, by creating a table of contents or index, doable in a few minutes by a PC using appropriate off-the-shelf software.
The draft section appears to be aimed directly at the core issue now pending in the JURIS FOIA suite. TA and West, instigator of Sec. 3518 (f), are on opposite sides in that case.
The JURIS suit arose after West announced in September 1993
that it would refuse to renew its "JURIS" contract with the U.S.
Department of Justice ("DOJ"). West had been supplying (at a
cost up to that time of about $3 million) electronic tapes,
containing the text of federal court and federal administrative
agency decisions, to DOJ's Computer Assisted Legal Research
("CALR") System, called "JURIS". West also asserted, and DOJ
agreed, that on cancellation of the contract DOJ was obligated to
destroy its JURIS database or return it to West.
TA, the nation's leading electronic publisher of tax materials, is a nonprofit corporation operating in Arlington, VA.
It employs about 200 people and grosses around $10 million annually. One of its charitable and educational purposes is to make available to the general public, in electronic form and at minimal cost, all the statutory, court-decided and administrative law of the federal and state governments of the United States as soon as it can be made electronically available on-line, on CDROM or in any other convenient format.
JURIS is a publicly owned electronic database containing nearly all the federal law created from the time of John Marshall to the present. Upon learning of its possible destruction, TA determined to seek every lawful avenue to prevent it, and to achieve release of the database to the public. In November 1993 TA submitted a FOIA request to DOJ for the JURIS database. TA filed suit against DOJ in January 1994.
West promptly intervened in the suit. West claimed ownership of the JURIS database by reason of its claimed "added value." That "added value" consisted of taking public domain caselaw, which West already was keyboarding or scanning into its computers for its commercial "Westlaw" system, and then formatting the public domain data to run on unique, governmentdeveloped and supplied, JURIS software. As mentioned, DOJ (and the taxpaying public) paid West about $3 million for doing that job.
DOJ and West have moved in the JURIS case to dismiss TA's FOIA suit for the electronic case law West had supplied under the contract described above. The motion is pending and a decision on it is expected soon.
The gist of the motion to dismiss is that JURIS is not an "agency record" (a jurisdictional requirement of the FOIA) because West has a "proprietary interest" in the JURIS database. That interest is said to derive from West's processing of the public domain court and administrative agency-created caselaw so as to "add value" -- i.e., to make the data searchable and retrievable electronically by government attorneys using the JURIS search-and-retrieve indexing software.
Proposed Sec. 3518 (f)(2) of the draft Paperwork Reduction Act would exempt the JURIS database from the FOIA. The JURIS database would no longer be public information. The section would prohibit DOJ from "disseminate[ing]" JURIS "except under terms that are expressly agreed to by" West. It would require immediate dismissal of TA's JURIS FOIA suit.
Thus Sec. 3518 (f) would automatically destroy the public's right under the FOIA to obtain free electronic access to the public's law: law written by judges and agency official on the public payroll, working in courts and agencies whose budgets are paid by the public's tax dollars; law that was converted into electronic form at public expense. This result would benefit one company, West. TA cannot believe that the President or the Congress, knowing of the effect, and almost certain purpose, of Sec. 3518 (f), would favor its becoming law.
Sincerely yours,
William A. Dobrovir
cc: Tax Analysts
jk
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