From: | Nick Morgan <nmorgan@igc.org> |
Date: | Wed, 13 Mar 1996 17:26:26 -0800 (PST) |
Reply: | cpeo-military |
Subject: | Nader calls for release AF database |
From: "Nick Morgan" <nmorgan@igc.org> ********WARNING: THIS IS A VERY LONG FILE********* ----------------------------------------------------------------- TAP-INFO - An Internet newsletter available from listproc@tap.org ----------------------------------------------------------------- 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) +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ INFORMATION POLICY NOTES is a free Internet newsletter sponsored by the Taxpayer Assets Project (TAP) and the Consumer Project on Technology (CPT). Both groups are projects of the Center for Study of Responsive Law, which is run by Ralph Nader. The LISTPROC services are provide by Essential Information. Archives of TAP-INFO are available from http://www.essential.org/listproc/tap-info/ TAP and CPT both have Internet Web pages. http://www.tap.org/tap http://www.essential.org/cpt Subscription requests to tap-info to listproc@tap.org with the message: subscribe tap-info your name TAP and CPT can both be reached off the net at P.O. Box 19367, Washington, DC 20036, Voice: 202/387-8030; Fax: 202/234-5176 +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ | |
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