Nader calls for release AF database

[Nick Morgan <nmorgan@igc.org>]

From: "Nick Morgan" <nmorgan@igc.org>

********WARNING: THIS IS A VERY LONG FILE*********

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TAP-INFO - An Internet newsletter available from listproc@tap.org
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INFORMATION POLICY NOTES
December 22, 1995
Crown Jewels Campaign - FLITE Supreme Court Decisions

- TAP ask Clinton Administration to release to public an Air
 Force database (FLITE) that contains the full text of all
 U.S. Supreme Court decisions since 1937. The database does
 not include copyrighted materials, and was developed at
 taxpayer expense.

- Clinton Administration claims it does not have to release
 the records under the Freedom of Information Act (FOIA),
 because they are "library" materials.

- West Publishing has lobbied the Clinton Administration
 against public disclosure of FLITE Supreme Court opinions.

- Interesting lobbying fact. In 1994, West Publishing
 President Vance Opperman donated $65,000 to two committees
 of the Democratic National Committee (DNC). Following the
 November 1994 election, the Opperman family (Vance, his
 father Dwight, and Darin and Jane Opperman) has stepped up
 contributions to a number of republican candidates
 (including the presidential campaigns of Dole, Alexander and
 Lugar). On February 22, 1995, West Publishing gave $15,000
 in "soft money" to the National Republican Congressional
 Committee.

The following letter from TAP asks the Clinton Administration to
abandon its efforts to withhold the FLITE Supreme Court opinions
from disclosure to the public. We have also asked OMB official
Sally Katzen for a meeting to discuss this mater. James Love
(love@tap.org, 202/387-8030)

December 21. 1995

Dr. Sheila Widnall 
Secretary of the Air Force 
Room 4E871, 1640 Air Force
The Pentagon, Arlington, VA 20330-1670

Sally Katzen, Administrator
Office of Information and Regulatory Affairs
Office of Management and Budget
Washington, D.C. 20503

RE: Air Force FLITE database

Dear Secretary Widnall and Administrator Katzen:

 We are writing pursuant to the Freedom of Information Act
("FOIA") to request an electronic copy of all United States
Supreme Court decisions contained in the database created under
the U.S. Air Force's Finding Legal Information Through
Electronics ("FLITE")[Sometimes referred to as Federal Legal
Information Through Electronics] program. We would like to put
the Supreme Court decisions on the Internet through the Essential
Information site on the World Wide Web
(http://www.essential.org). The information will be free to the
public. Not only will this benefit the general public, who has
already paid for the collection of this data through their taxes,
but it will be available to thousands of federal government
employees, many of whom now pay high prices to commercial data
vendors such as West Publishing or Lexis, to obtain access to
this information.

 As you know, the FLITE database contains a number of
elements, one of which is a library of more than 60 years of U.S.
Supreme Court decisions. [Editor's note, actually, this should
have read, 58 years's, rather than more than 60] We are aware
that the Clinton Administration has opposed the release of any
court opinion in the FLITE database. We are also aware that the
FLITE database also includes a number of lower court cases which
West Publishing claims ownership to, because the data was copied
(by Air Force Employees) from West reporters. While we believe
that the public has a right to the entire FLITE database, we are
not asking for all FLITE records at this time. We are only
asking for copies of the U.S. Supreme Court opinions. It is my
understanding, from discussions with Air Force FLITE staff, that
the Air Force "owns" these decisions free and clear, and that
there is no legal barrier to the release of these court opinions
to the public. 

 Of course, we are not asking for any privately copyrighted
information, such as third party analysis of the court opinions. 
We are only asking for the text of the Supreme Court opinions,
which are materials that are not copyrighted, which cannot be
copyrighted, and which are in the possession and control the Air
Force.

 It should be noted that FLITE personnel has negotiated with
our organization to "barter" for the opinions. That is, the Air
Force demanded that we provide the Air Force with access to data,
in return for the Supreme Court opinions. We actually offered to
give the Air Force access to ten years of the text of the
Multinational Monitor, a monthly magazine, but even that offer
did not succeed in obtaining copies of the 60 years of Supreme
Court opinions in FLITE. Frankly, we were astounded to find that
the Air Force wants to obtain rights to privately copyrighted
materials (such as the text of the Monitor) before it will
release public records such as Supreme Court opinions, which are
subject to FOIA.

 I am attaching letters from Congressman Major R. Owens and
Congressman Bernard Sanders that express concern over the Air
Force's reluctance to release these decisions to the public.

 It should be noted that we are aware of more than a half
dozen requests for the FLITE court opinions through FOIA, and
none have been successful. It appears as though the federal
government is spending a tidy sum litigating this point. So
please add to our FOIA request the dollar amount of money the
federal government is spending to deny FOIA requests for the
FLITE court opinions. We also request copies of all FOIA
requests by other persons for the FLITE data, and the Air Force's
response, so we can better gauge how much effort the government
is expending to deny the public access to the decisions of our
Supreme Court.

 One recent denial for the FLITE data was received by Mr.
Michael J. O'Kane of Coral Gables, Florida, on December 5, 1995 
(No. 94-1841). In the Administrative appeal, the Air Force told
Mr. O'Kane that the Air Force did not consider the FLITE Supreme
Court opinions subject to FOIA, based upon the case of Baizer v.
Department of the Air Force, 887 F. Supp. 225, 1995 U.S. Dist.
LEXIS 3487 (N.D. Cal. 1995). The Baizer case has been widely
criticized by FOIA experts for its broad assertion of an
exemption from FOIA for "library" materials, and its questionable
use of legal precedent. In Baizer, an attorney in Oakland
California tried to obtain the Supreme Court opinions in the
FLITE database. District Court Judge Fern M. Smith held that the
Air Force did not have to release the records under FOIA, because
the court opinions were "library" materials. Under the reasoning
used by Judge Fern Smith, if a commercial vendor sells an agency
records to a library, the records are no longer subject to FOIA. 
This decision, which is flawed in several important areas, was
largely based upon the 19 year old Ninth Circuit case, SDC
Development v Mathews, 542 F.2d 1116 (9th Cir. 1976).

 THE SDC DEVELOPMENT V MATHEWS CASE.

 In SDC v Mathews, a FOIA litigant was denied access to the
National Library of Medicine's MEDLARS database, on the grounds
that the materials in MEDLARS were available in libraries. There
are several aspects of SDC which deserve comment. 

 First, the facts of the case were quite different from
Baizer. In SDC v Mathews, the FOIA litigant was attempting to
obtain a government database under FOIA that was leased to the
public by the National Library of Medicine (NLM), a federal
agency, at a high price. The FOIA requester sought to obtain the
database at the more favorable price determined by FOIA. The NLM
was operating under a special statutory program, which was
designed to allow the NLM to make a profit on the sale of the
MEDLARS database, which consists primarily of medical research
abstracts. The Ninth Circuit court's then Judge Anthony Kennedy
wrote the opinion, which distinguished the MEDLARS database from
other agency records, on the grounds that the records of MEDLARS
were not those which dealt with the "structure, operation, and
decision-making procedure" of the agency, and moreover, that the
records were indeed sold by the agency under a sales program that
was specifically authorized by the Congress. In writing SDC,
Judge Kennedy said 

 We conclude, therefore, that library reference
 materials for WHICH CHARGES ARE SPECIFICALLY
 AUTHORIZED, such as the MEDLARS tapes sought in this
 case, are not "records" or "agency records" which must
 be made available at nominal charges pursuant to
 [FOIA]. (emphasis added) (page 1120)

When SDC v Mathews was decided, it was considered an important
limitation on the public's rights under FOIA, and it was widely
criticized in the FOIA community. However, it clearly did not
apply to a case such as Baizer, where the Air Force has never, to
our knowledge, authorized the sale of the data, nor can the Air
Force identify a special congressionally authorized statute to do
so, as was the case with the NLM's MEDLARS database. Indeed, if
the Air Force did decide to sell the data to the public, it would
be bound by a new federal statue, the new amended federal
Paperwork Reduction Act (PRA), which would limit the price of the
data to no more than the "cost of dissemination." (44 USC Sec
3506 (d)(4)) See Attachment.

 Moreover, in the nearly two decades since SDC v Mathews,
there have been a number of newer cases which clearly give the
public broader access to agency records. The most important case
was the 1989 Supreme Court decision in Department of Justice v.
Tax Analysts, 492 U.S. 136 (1989). 

 THE DEPARTMENT OF JUSTICE V. TAX ANALYSTS SUPREME COURT
 DECISION

 In Tax Analysts, a non-profit publisher was asking the
Department of Justice (DOJ) for copies of all federal tax court
opinions in the possession of DOJ. These opinions were clearly
available from the courts or from other commercial publishers,
such as West Publishing. Thus, the court could have rejected the
FOIA request using the so called "library materials" theory. But
the Supreme Court clearly found for the FOIA litigant, and
required DOJ to provide Tax Analysts with copies of all court
opinions that it receives. The Court ruled that a successful
FOIA requester need only establish that the records are (1)
created or obtained by the agency, (2) are under the control of
the agency, (3) and that FOIA's specific statutory exemptions are
not found applicable. (pages 144-45). In rejecting the idea
that DOJ could decline the request for court opinions in Tax
Analysts, the Supreme Court said:

 Congress surely did not envision agencies satisfying
 their disclosure obligations under the FOIA simply by
 handing requesters a map and sending them on scavenger
 expeditions throughout the nation. (page 153)

 In a 1992 District of Columbia Circuit Court opinion,
authored by then Judge Ruth Bader Ginsburg, the court addressed a
case similar to the FLITE database situation. In Petroleum Info.
Corp., then Judge Ginsburg stated that a database of all Bureau
of Land Management lands was subject to FOIA and that an agency
was not "relieved of an obligation to disclose simply because
information is available elsewhere." Petroleum Info. Corp. v.
U.S. Dep't of the Interior, 976 F.2d 1429, 1437 (D.C.C. 1992). 
Similar to the FLITE database, and the Tax Analysts case, BLM's
project involved gathering a mass of information in the public
domain into a consolidated form. In ordering BLM to provide the
data, the court stated that "FOIA . . . is largely indifferent to
the intensity of a particular requester's need." Id. The point
stressed by the court was that if the agency possessed the data
and no exceptions under FOIA applied, it had to be provided to
the FOIA requester, regardless of whether the information could
be assembled from publicly available sources. 

 FOIA experts note that courts have been clear in indicating
that FOIA exemptions should be construed narrowly, and that
agencies should not be given opportunities to avoid disclosure. 
For example, in 1992 the 2nd Circuit ruled in Fed'l Labor Rel.
Auth. v. U.S. Dep't of Veterans Affairs, 958 F.2d 503, 508-09 (2d
Cir. 1992), that

 FOIA's "goal [is to give] the public access to all non-exempted information received by an agency as it
 carries out its mandate." (quoting Tax Analysts)
 (emphasis added). 

It is obvious that the Baizer case relies upon specious reasoning
and unsound policy, and is contrary to the mainstream of FOIA
cases. Pursuant to the clear precedent of the Supreme Court and
other Circuit Courts, it would be a violation of FOIA for the Air
Force to refuse to provide the requested cases in the FLITE
database. 

 In addition to the legal precedent discussed above, we
believe it would be a waste of taxpayer dollars for the Air Force
to refuse this FOIA request, thus necessitating costly litigation
in order to deny public access to this information. This
incongruous situation, in which the Air Force uses taxpayer funds
to defend FOIA litigation seeking to obtain a database created
with taxpayer dollars, can easily be avoided by prompt
satisfaction of this FOIA request. What great public policy
principle is at stake here, that causes the Clinton
Administration to reject request after request for a database of
some 60 years of U.S. Supreme Court opinions?

Sincerely,

/s/
James Love (202/387-8030, love@tap.org)
Director, TAP

/s/
Todd J. Paglia (202, 387-8030, tpaglia@tap.org)
Attorney, TAP

 -------------------------------
 ATTACHMENT
 INFORMATION DISSEMINATION SECTIONS OF 
 PAPERWORK REDUCTION ACT
 (Public Law 104-13)
 
SEC. 2. COORDINATION OF FEDERAL INFORMATION POLICY.
Chapter 35 of title 44, United States Code, is amended to read as
follows:
``3506. Federal agency responsibilities.
``(d) With respect to information dissemination, each agency
shall--
``(1) ensure that the public has timely and equitable access to
the agency's public information, including ensuring such access
through--
``(A) encouraging a diversity of public and private sources for
information based on government public information;
``(B) in cases in which the agency provides public information
maintained in electronic format, providing timely and equitable
access to the underlying data (in whole or in part); and 
``(C) agency dissemination of public information in an efficient,
effective, and economical manner;
``(2) regularly solicit and consider public input on the agency's
information dissemination activities;
``(3) provide adequate notice when initiating, substantially
modifying, or terminating significant information dissemination
products; and
``(4) not, except where specifically authorized by statute--
``(A) establish an exclusive, restricted, or other distribution
arrangement that interferes with timely and equitable
availability of public information to the public;
``(B) restrict or regulate the use, resale, or redissemination of
public information by the public;
``(C) charge fees or royalties for resale or redissemination of
public information; or
``(D) establish user fees for public information that exceed the
cost of dissemination.

 -----------------------
 FLITE DATABASE

The Air Force FLITE system was created by the government in 1963,
twelve years before WESTLAW was started. The FLITE database
consists of a mix of public domain and copyrighted materials. 
The taxpayers have spend millions of dollars to acquire the many
public domain materials in the database. You can help liberate
this data by writing your own members of Congress to ask for a
letter to the Air Force protesting the policy of refusing to
release the public domain records to the public. The following
is a list of the elements in FLITE database. We are presently
trying to get the U.S. Supreme Court decisions, but there are
many additional items of interest to the public.

< AAIS > Air Force Instructions from SAF/AAI CD 
< AAPD > AF Policy Directives from SAF/AAI CD 
< ACMR > Army Court of Criminal Appeals 
< ACON > Contract Attorneys Course (Army JAG School) 
< ACY4 > Contract Year in Review 1994 (Army JAG School) 
< ADRM > Alternative Dispute Resolution Material 
< AFFR > AF FAR Supp thru AFAC 92-45, 3 Feb 95 
< AFIB > AFIS from SAF/AAI Bulletin Board 
< AFIN > Air Force Indexes 
< AFIS > Air Force Instructions (AFIB and AAIS) 
< AFJI > Air Force Joint Instructions 
< AFJM > Air Force Joint Manuals 
< AFLC > Fiscal Law Course (Army JAG School) 
< AFLR > Air Force Law Review (Vol 38- ) 
< AFLS > AFLSA Documents (Misc) 
< AFMC > AFMC FAR Supp thru AFMCAC 95-1, 31 Dec 94 
< AFMS > Air Force Manuals 
< AFPD > AF Policy Directives (AAPD and BBPD) 
< AFRS > Air Force Regulations - MAY NOT BE CURRENT 
< AICC > Installation Contracting Course (Army JAG School) 
< ALAW > The Army Lawyer 
< ALIT > Litigation Course (Army JAG School) 
< ALLJ > AF/JA and AFLSA Documents (concatenated) 
< ALRS > ALR Reports (PASSTHRU) 
< AMCR > AMC Roster (Reserve & National Guard) 
< AMJ2 > AMJAMS Users' Guide 
< AMJC > Military Justice Courses (Army JAG School) 
< ANGD > Air National Guard Deskbook 
< ANGH > TJAG's Air National Guard Council History 
< ANGR > Air National Guard Judge Advocate Roster 
< APFC > Procurement Fraud Course (Army JAG School) 
< AREG > Selected Emergency-Related Army Regulations 
< BANK > Bankruptcy Notes (AFLSA/JACN) 
< BBPD > AFPDs from the SAF/AAI Bulletin Board 
< BCA1 > Contract Appls Decs (BCA) 56-2 - 92-2 (1956-92) 
< BCA2 > Contract Appls Decs (BCA) 92-3 - 94-3 (1992-94) 
< BCA3 > Contract Appls Decs (BCA) 94-3 thru Slip Ops 
< BCAL > Lessons Learned, ASBCA Practice 
< BCAS > Contract Appls Decs (BCA) 56-2 - 95-1 (1956-95) 
< BRIF > Selected AFLSA/JAJA Briefs 
< CASE > Selected Case Law for DEARAS 
< CDR2 > Comptroller General Decisions (1981-93) 
< CDRL > The Military Commander and The Law 
< CDRM > Comptroller General Decisions (1921-81) 
< CFRS > Code of Federal Regulations (PASSTHRU) 
< CFTP > Career Field Education & Training Plans 
< CG01 > Comptroller General Decisions (1921-Sep 81) 
< CG02 > Comptroller General Decisions (Oct 81-Aug 95) 
< CG03 > Comptroller General Decisions (Aug 95 - ) 
< CILE > Selected Intelligence Laws for DEARAS 
< CJTR > Joint Travel Regulations (JTR) -- Civilian 
< CLLO > Labor Law Primers (CLLO) 
< CMHB > Court-Martial Handbook (AFLSA/JAJM), May 1994 
< COD1 > US Code Titles 1-25 (through Pub.L. 103-413) 
< COD2 > US Code Titles 26-50 (through Pub.L. 103-413) 
< CODE > United States Code (through Pub.L. 103-413) 
< COMA > US Ct of Appeals for the Armed Forces (1994-95) 
< COMG > Comptroller General Decisions (1921-1995) 
< CRSF > Crossfeed -- AF JAG Computer Programs 
< CTCL > Claims Court (PASSTHRU) 
< DDDG > BRS/SEARCH 6.0 Database Design Guide 
< DDMN > BRS/SEARCH 6.0 Daemon Guide 
< DFAR > DoD FAR Supp thru DAC 91-6, 27 May 94 
< DIGO > Digest of Opinions, Armed Forces JAGs (DIGOPS) 
< DIGW > Digest of War and Emergency Legislation 
< DLSA > LEXSEARCH System Administrator's Guide 
< DLUS > LEXSEARCH User's Guide 
< DMNS > BRS/SEARCH 6.1 MNS Guide with Hypertext Links 
< DOCL > AFCIMS Users Manual (Draft) 
< DODD > Department of Defense Directives 
< DODI > Department of Defense Instructions 
< DODM > Department of Defense Manuals 
< DODR > Department of Defense Regulations 
< DODS > DoD Directives and Instructions 
< DPRI > BRS/SEARCH 6.0 Users' Guide--Online 
< DPTF > BRS/SEARCH 6.0 Print-Time Formatting Guide 
< DTHS > BRS/SEARCH 6.0 Thesaurus Guide 
< DUNX > BRS/SEARCH 6.0 UNIX I.C.E. Guide 
< DUSR > BRS/SEARCH 6.1 User's Guide with Links 
< DVWS > BRS/VIEWS 6.1 User's Guide with Links 
< ECOD > Selected Emergency-Related US Code Sections 
< EDOD > Selected Emergency-Related DODDs & DODIs 
< EEO1 > Equal Employment Opportunity Comm (segment 1) 
< EEO2 > Equal Employment Opportunity Comm (segment 2) 
< EEOC > Equal Employment Opportunity Comm Decisions 
< EEXO > Emergency Executive Orders 
< EMSD > Emergency Miscellaneous Service Documents 
< ENV2 > Environmental Law Databases (PASSTHRU) 
< ENVL > Environmental Law Materials (AFLSA/JACE) 
< EXEC > Selected Executive Documents 
< F2D1 > Federal Reporter 2d Series (1980-84) 
< F2D2 > Federal Reporter 2d Series (1984-87) 
< F2D3 > Federal Reporter 2d Series (1987-88) 
< FAR1 > Fed Acquisition Reg thru FAC 90-29, 3 JUL 95 
< FARS > Combined FAR1, DFAR, AFFR, and AFMC 
< FCIR > Federal Circuit Courts (PASSTHRU) 
< FEMA > Federal Emergency Management Authority Regs 
< FGSS > Fed Guidelines, Searching/Seizing Computers 
< FIRM > Fed Info RM Reg (FIRMR) thru Circ 90-11 (7 Mar 
< FLRA > Federal Labor Relations Authority (PASSTHRU) 
< FLRF > Federal Labor Relations Authority Decisions 
< FOIA > Freedom of Information Act 
< FREG > Federal Register (PASSTHRU) 
< FSIP > Federal Service Impasses Panel (PASSTHRU) 
< FSUP > Federal Supplement (PASSTHRU) 
< GPUB > General Publications for FEMA 
< HELP > FLITE Users' Guide 
< HIST > History of FLITE Database Maintenance 
< INTL > Selected Treaties & Int'l Laws for DEARAS 
< JACA > AF Preventive Law Materials (AFLSA/JACA) 
< JACC > Claims Clips (AFLSA/JACC) 
< JFTR > Joint Federal Travel Regs (JFTR) -- Military 
< JLTR > AF TJAG Policy Letters 
< JOBS > Civilian Employment Opportunities 
< JOG1 > TIPS for Computer Use 
< JPUB > Joint Publications 
< JREG > Joint Regulations 
< LAWS > Public Laws, 100th thru 103rd Congresses 
< LISA > All Air Force Instructions from SAF/AAI CD-ROM 
< LL95 > Federal Employee Labor Law Course 
< LLST > The Legal List 
< LOAC > Law of Armed Conflict Training Guide 
< MHUB > Martindale-Hubbell Directory (PASSTHRU) 
< MILJ > Military Justice Cases (1975-95) 
< MJ01 > Military Justice Reporter (1975-88) 
< MJFL > Military Justice Cases (FLITE) (1988-95) 
< MJUS > All Military Justice Opinions (1975-95) 
< MNCM > Manual for Courts-Martial 
< MSPB > Merit System Protection Board (PASSTHRU) 
< NAVR > NAVR from Navy Regulations 
< NCIV > Civil Law Study Guide 
< NCOA > NCO Academy Documents 
< NCRM > Criminal Law Study Guide 
< NEVI > Evidence Study Guide 
< NEWF > Recent Supreme Court & Fed Circuit Court Cases 
< NEWS > NEWS -- Items of Interest to JAGs and Paralegals 
< NMCM > Navy-Marine Court of Criminal Appeals 
< NOPS > Naval Operations Law Manual 
< NORM > Temporary Test Database 
< NPRO > Procedure Study Guide 
< NSJA > SJA Deskbook 
< NSOC > OGE - Standards of Conduct 
< OCMR > Old Ct of Military Review Cases (red books) 
< OJAG > Air Force Judge Advocate General Opinions 
< PACK > Crisis Action Packages (DEARAS) 
< PCMR > Air Force Court of Military Review (published) 
< PDEV > Professional Development Updates (AF/JAX) 
< PL00 > Public Laws for the 100th Congress 
< PL01 > Public Laws for the 101st Congress 
< PL02 > Public Laws for the 102nd Congress 
< PL03 > Public Laws for the 103rd Congress 
< PL04 > Public Laws for the 104th Congress 
< PRLW > Preventive Law Materials (Army) 
< PUBL > Selected Public Laws for DEARAS 
< QANG > Quality Air Force Info for ANG JA Offices 
< RESV > AF JAG Department Reserve Roster 
< RFLX > Air Force Regulations for REFLEX 
< RONB > Database TEST 
< ROST > AF JAG Roster (Active Duty) 
< RRTS > Reemployment Rights Under USERRA of 1994 
< SCFL > U.S. Supreme Court (FLITE) (1988-94) 
< SCRL > Supreme Court Rules, July 26, 1995 
< SCT0 > United States Reports 1937-1975 
< SCT1 > Supreme Court Reporter (1976-88) 
< SCTH > United States Supreme Court (1994-95) 
< SCTR > United States Supreme Court (1937-95) 
< SHEP > Shepards Citator (PASSTHRU) 
< STAF > Directorate Staff Meeting Minutes (AFLSA/JAS) 
< STCA > State Cases (PASSTHRU) 
< STST > State Statutes (PASSTHRU) 
< TDBK > Trial Counsel Deskbook 
< TFRP > The Federal Response Plan 
< TG93 > All States Tax Guide, Tax Year 1993 
< TG94 > All States Tax Guide, Tax Year 1994 
< THES > LL.M. Thesis Collection 
< TIPS > TIPS for Computer Use 
< TX94 > Tax Law Materials, Tax Year 94 (Army) 
< UCMR > Air Force Ct of Military Review (unpublished) 
< UPIL > Unpublished International Law Agreements 
< USAF > ALL Air Force Publications (concatenated) 
< USC0 > US Code Incomplete (1988 ed thru Supp II 1990) 
< USC1 > US Code Incomplete (1988 ed thru Supp III 1991) 
< USC2 > US Code Incomplete (1988 ed thru Supp IV 1992) 

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