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January 16, 1996

TAX ANALYSTS, Plaintiff,

The opinion of the court was delivered by: KESSLER

 This action is brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq. Plaintiff is a nonprofit organization that publishes, in printed and electronic form, news and documents about federal, state, and local taxation, including summaries and full texts of tax decisions by federal courts. Plaintiff seeks to compel Defendant Department of Justice ("DOJ") to disclose its Justice Retrieval and Inquiry System ("JURIS"), an electronic legal research database. The issue in this case is whether JURIS is an "agency record" subject to disclosure under FOIA.

 I. Procedural Background

 On November 22, 1993, Plaintiff submitted a FOIA request to DOJ for the JURIS database. Two weeks later, on December 2, 1993, DOJ denied Plaintiff's request for the portion of the JURIS database provided by West. *fn1" The DOJ claimed that the West-provided part of JURIS was not an "agency record," and therefore not subject to disclosure under FOIA. Moreover, DOJ argued that even if the West-provided part of JURIS was an agency record, it was exempt from disclosure pursuant to Exemption 4 of FOIA, 5 U.S.C. Section 552(b)(4), because it is confidential commercial information. *fn2"

 On December 8, 1993, Plaintiff appealed the denial of its FOIA request to the DOJ's Office of Information and Privacy. When DOJ failed to rule on the appeal by the statutory due date of January 10, 1994, *fn3" Plaintiff brought this action in the U.S. District Court. West Publishing Company ("West") intervened as of right, pursuant to Fed. R. Civ. P. 24 (a) & (b) because it had a substantial interest in the material being sought by Plaintiff.

 On February 14, 1994, DOJ filed a Partial Motion to Dismiss for lack of subject matter jurisdiction. *fn4" On the same day, Defendant-Intervenor West also filed a Motion to Dismiss for lack of subject matter jurisdiction.

 On May 27, 1994, Plaintiff filed a Motion for Partial Summary Judgment, requesting that the Court order DOJ to produce portions of the JURIS system which were contributed to JURIS by the Departments of Health and Human Services, Education and the Air Force. On August 11, 1994, DOJ filed a Motion to Dismiss, or in the Alternative, For Stay of Proceedings. On September 8, 1994 the Court granted DOJ's motion to Stay Proceedings until a ruling on the Motions of Defendant DOJ and West to Dismiss (both filed February 14, 1994).

 Thus, this matter is before the Court upon DOJ's Partial Motion to Dismiss and West's Motion to Dismiss.

 II. Statement of Facts

 JURIS is an electronic legal research system created and maintained by DOJ. *fn5" It is an electronic depository of federal cases, regulations and digest material, through which DOJ attorneys conduct research for their cases. JURIS also provides citating services that allow subscribers to "shepardize" their cases, i.e., to research their legal history. The system was developed by DOJ in the early 1970's, became operational in 1974, and expanded in 1979 to include other executive departments. JURIS is not available to the general public; access is limited to federal and state government users who subscribe through a reimbursement agreement between the subscribing agency and the DOJ.

 Until 1983, the data in JURIS was collected, organized, and "inputted" by DOJ and other federal agencies. Beginning in 1983, however, DOJ contracted with West to provide 80% of the information in JURIS. The most recent contract between DOJ and West -- the one central to this case -- ran from 1988 to 1993 (the "1988 contract" or "contract"). Under that contract, West collected, organized and computer-formatted cases, opinions and digests to make them ready for use on JURIS. *fn6"

 III. The Freedom of Information Act

 Under the FOIA, a federal agency must make available for public inspection and copying its opinions, statements of policy, interpretations, staff manuals and instructions that are not published in the Federal Register, 5 U.S.C. § 552(a)(2). In addition, § 552(a)(3) requires that an agency "upon any request for records which . . . reasonably describes such records" to make such records "promptly available to any person." *fn7"

 A district court has jurisdiction to enjoin an agency from withholding agency records and to order the production of any agency records improperly withheld from a complainant. § 552(a)(4)(B). The court has jurisdiction only if the plaintiff establishes that an agency has (1) improperly (2) withheld (3) agency records. Kissinger v. Reporters Committee for Freedom of Press, 445 U.S. 136, 150, 63 L. Ed. 2d 267, 100 S. Ct. 960 (1980). Unless all three of these criteria are met, a district court lacks jurisdiction to compel an agency to comply with FOIA. In this case, the first two jurisdictional prongs of the Kissinger test are not at issue. Rather, Defendants argue that this Court lacks jurisdiction because the JURIS is not an "agency record" under controlling law.

 IV. "Agency Records"

 A. The Test

 The FOIA does not define "agency record," and "the legislative history is similarly unilluminating." Tax Analysts v. United States Department of Justice, 269 U.S. App. D.C. 315, 845 F.2d 1060, 1067 (D.C. Cir. 1988, aff'd 492 U.S. 136, 106 L. Ed. 2d 112, 109 S. Ct. 2841 (1989). Although the statute fails to define the term, the Supreme Court in affirming the Court of Appeals decision in Tax Analysts, articulated a two-part test to determine what constitutes an "agency record" under the FOIA: "agency records" are documents which are (1) either created or obtained by an agency, and (2) under agency control at the time of the FOIA request. United States Department of Justice v. Tax Analysts, 492 U.S. 136, 144-145, 106 L. Ed. 2d 112, 109 S. Ct. 2841 (1989); see also U.S. Department of Justice, Freedom of Information Act Guide & Privacy Act overview, September 1994 Ed., at 13. Neither party disputes that the West-provided material was "created or obtained" by DOJ during the time in question. The issue is whether the West-provided data in JURIS was under the "control" of DOJ when Plaintiff made its FOIA request. If DOJ "controlled" the data, it is an agency record subject to FOIA.

 In Tax Analysts, the Supreme Court gave only general guidance to what it meant by "control." The Court said that "by control we mean that the materials have come into the agency's possession in the legitimate conduct of its official duties." Tax Analysts, 492 U.S. at 144. Further, the Court said that "the control inquiry focuses on an agency's possession of the requested materials, not on its power to alter the content of the material it receives." Id. at 147.

 As might be expected, the parties take this language to mean opposite things. Plaintiff argues that "control" is determined foursquare by "possession," and since DOJ undoubtedly "possessed" the data at the time of the FOIA request, DOJ controlled the data. Defendants, in contrast, argue that the Supreme Court did not mean that "possession" and "control" were synonymous, but simply that "possession" should be one of many factors the court considers in its control inquiry.

 Plaintiff correctly points out that the Supreme Court in lax Analysts directed the control inquiry to "possession." But the Court stated only that the "inquiry focuses on an agency's possession," Id. at 147, not that possession alone determined control. To hold that control is synonymous with possession contradicts the Supreme Court's ruling in Kissinger v. Reporters Committee for Freedom of Press, 445 U.S. 136, 63 L. Ed. 2d 267, 100 S. Ct. 960 (1980), upon which lax Analysts itself was based, that: "We simply decline to hold that physical location of the *fn8"

 Moreover, the Supreme Court in Tax Analysts did not establish a new test for determining what was an "agency record" under FOIA. The Court itself acknowledged in Tax Analysts that it did not "write on a clean slate." Id. at 142. Rather, it clarified the standard already in place and applied factors that courts in this Circuit, and the Supreme Court itself, had been applying in earlier cases. *fn9" Plaintiff's ...

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