The opinion of the court was delivered by: D. LOWELL JENSEN
On June 10, 1992 the Court heard plaintiff's motion for a temporary restraining order. William T. Mayo appeared pro se. Assistant United States Attorney George Christopher Stoll appeared for defendant. Having considered the papers submitted, the arguments of counsel, the applicable law, and the entire record herein, the Court DENIES the motion for the following reasons.
Plaintiff is an attorney practicing in California. Plaintiff operates an electronic bulletin board service that provides slip opinions in electronic format from the California Supreme Court as well as the Ninth Circuit. Plaintiff obtains the slip opinions in electronic format directly from the electronic bulletin boards maintained by the respective courts. Plaintiff's bulletin board service allows persons using their own personal computer to download slip opinions free of charge.
Plaintiff inquired about accessing PHBBS at three of the designated depository libraries: Golden Gate University School of Law Library, San Franciso's Main Public Library, and Hastings College of the Law Library. Plaintiff claims that he was actively discouraged from accessing PHBBS at the facilities because they did not have the resources nor the physical equipment necessary to facilitate access. Plaintiff was able to access PHBBS at the Golden Gate University School of Law Library, yet plaintiff claims that he had no working space and that the equipment was inadequate to download material in an efficient manner.
Plaintiff then filed his complaint in this action. Plaintiff seeks relief pursuant to the Freedom of Information Act ("FOIA") (5 U.S.C. § 552) and pursuant to an alleged common law right to copy public records. Plaintiff alleges that he has been denied reasonable and meaningful access to the PHBBS in that he has been denied permission to directly log onto PHBBS from his own personal computer. Plaintiff now seeks a temporary restraining order enjoining defendant from preventing plaintiff from having reasonable direct access to the PHBBS.
II. LEGAL STANDARD FOR TEMPORARY RESTRAINING ORDER
The traditional test within the Ninth Circuit for issuing a temporary restraining order includes consideration of four factors: (1) The likelihood of the plaintiffs' success on the merits; (2) the threat of irreparable harm to the plaintiffs if the injunction is not imposed; (3) the relative balance of this harm to the plaintiffs and the harm to the defendants if the injunction is imposed; and (4) the public interest. Alaska v. Native Village of Venetie, 856 F.2d 1384, 1388 (9th Cir. 1988) (citing Los Angeles Mem. Coliseum Comm'n v. National Football League, 634 F.2d 1197, 1200 (9th Cir. 1980)).
Courts within the Ninth Circuit have collapsed these factors into a two-prong test. To qualify for a restraining order, the moving party must show either (1) a combination of probable success on the merits and the possibility of irreparable harm, or (2) that serious questions are raised and the balance of hardships tips sharply in the moving party's favor. Dumas v. Gommerman, 865 F.2d 1093, 1095 (9th Cir. 1989); Apple Computer Inc. v. Formula Int'l, Inc., 725 F.2d 521, 525 (9th Cir. 1984). These standards are not treated as two distinct tests, but rather as "the opposite ends of a single 'continuum in which the required showing of harm varies inversely with the required showing of meritoriousness.'" Rodeo Collection, Ltd. v. West Seventh, 812 F.2d 1215, 1217 (9th Cir. 1987) (quoting San Diego Comm. Against Registration And The Draft v. Governing Bd. of Grossmont Union High School Dist., 790 F.2d 1471, 1473 n.3 (9th Cir. 1986)); see also Dumas, 865 F.2d at 1095.
The FOIA specifically authorizes the district court to grant injunctive relief. The Act provides that, "on complaint, the district court . . . has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." 5 U.S.C. § 552(a)(4)(B).
However, the Supreme Court has made clear that, despite statutory authorization for injunctive relief, the district court must still exercise its sound discretion in granting injunctive relief. Weinberger v. Romero-Barcelo, 456 U.S. 305, 102 S. Ct. 1798, 1803, 72 L. Ed. 2d 91 (1982) ("The grant of jurisdiction to ensure compliance with a statute hardly suggests an absolute duty to do so under any and all circumstances, and a federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of law"). Although mindful of the statutory authorization for granting injunctive relief and of the public ...