(D.C. Cir. 1984) ("The inquiry necessarily must focus on a variety of factors surrounding the creation, possession, control, and use of the document by an agency.").
In Tax Analysts, the plaintiff sought access to copies of recent opinions and orders sent by the district courts to the Tax Division of the Department of justice. 492 U.S. at 138-39. The Tax Division represents the government in tax cases, and it uses the decisions to determine whether to appeal or to file post-trial motions when the government loses and to collect money judgments when the government prevails. Id. Moreover, the decisions are integrated into the Division's active case files. Tax Analysts v. United States Dep't of Justice, 269 U.S. App. D.C. 315, 845 F.2d 1060, 1068 (D.C. Cir. 1988), aff'd, 492 U.S. 136, 106 L. Ed. 2d 112, 109 S. Ct. 2841 (1989).
In holding that the opinions were agency records, the D.C. Circuit emphasized their use in decision making and considered "the extent to which agency personnel have read or relied upon the document." Id. By adopting a flexible, multi-factored test, the court dismissed "the slippery slope argument that the FOIA necessarily covers all public reference documents that may be found in agency libraries or offices . . . . Not everything in an agency library . . . is by any means an 'agency record' subject to disclosure under the Act." Id. at 1069.
Similarly, in concluding that the research database in SDC Development was not an agency record, the Ninth Circuit focused on the purpose of the FOIA--disclosure of records that "dealt with the structure, operation, and decision-making procedure of the various governmental agencies." Id. at 1119. This description of the statute's purpose finds ample support in a number of sources. See United States Dep't of Justice v. Reporters Committee for Freedom of Press, 489 U.S. 749, 773, 103 L. Ed. 2d 774, 109 S. Ct. 1468 (1989) (noting that the FOIA full disclosure policy "focuses on the citizens' right to be informed about 'what their government is up to'" and concluding that "information that sheds light on an agency's performance of its statutory duties falls squarely within that statutory purpose"); Berry v. United States Dep't of Justice, 733 F.2d 1343, 1349 (9th Cir. 1984) (citing a variety of sources to establish that the goal of the FOIA was "to allow the public to determine how agencies reach decisions"). The SDC Development court reasoned that, because library reference material does not provide any insight into agency decision making, it does not constitute an agency record.
In both Tax Analysts and SDC Development, therefore, circuit courts focused on how the agency used the requested material. If an agency integrates material into its files and relies on it in decision making, then the agency controls the material. If, on the other hand, material is maintained solely for reference purposes or as a research tool, then the indicia of control are lacking.
The Air Force simply does not control the decisions of the Supreme Court in the same manner that the Tax Division controlled the decisions it received as a party litigant, integrated into its case files, and used to prosecute appeals. As a result, the database of Supreme Court decisions is not an agency record.
This conclusion is bolstered by the fact that, because the FOIA does not define agency records, the Supreme Court has repeatedly referred to the definition of "records" contained in the Records Disposal Act, which was in effect when Congress passed the FOIA. 44 U.S.C. § 3301. See Forsham, 445 U.S. at 183; Kissinger, 445 U.S. at 147; Tax Analysts, 492 U.S. at 145. The definition specifically excludes library reference materials: "Library and museum material made or acquired and preserved solely for reference or exhibition purposes [and] extra copies of documents preserved only for convenience of reference . . . are not included within the definition of the word 'records' as used in this Act." 44 U.S.C. § 3301. Plaintiff's observation that the Supreme Court has never cited this portion of the Records Disposal Act is inconsequential. In Forsham, the Court cited the Attorney General's Memorandum on the Public Information section of the Administrative Procedure Act II (1967). 445 U.S. at 183. That memorandum applies the entire Records Disposal Act definition, including the exclusion of library reference material, to the FOIA.
Finally, it is well established that the FOIA is concerned with the content of information, not its form. See Dismukes v. Department of the Interior, 603 F. Supp. 760, 762 (D.D.C. 1984) (describing the Supreme Court's "reluctance to place the focus of FOIA on the 'physical format of documents' rather than on their contents"). As one commentator has noted:
Inconvenience to the requester of the form for availability of a record is not treated as denial of access. There is no right to have access in a particular format. Information content is controlling; the person cannot assert a withholding if the content is delivered and is the same as in the request. Though the plaintiff might want a more convenient alternative, that is more than the FOIA requires.
1 James T. O'Reilly, Federal Information Disclosure § 4.04, at 4-17 (2d ed. 1990) (citations omitted). Even if the Court concluded that computerized copies of Supreme Court opinions were agency records, therefore, the Air Force would not be required to produce them in precisely the format plaintiff has demanded. As one court has held, even when computer tape is the least expensive, most convenient means of access, "defendant has no obligation to accommodate plaintiff's preference. The agency need only provide responsive, nonexempt information in a reasonably accessible form . . . ." Dismukes, 603 F. Supp. at 763.
This is especially relevant because the Air Force "is seeking to protect not its information, but rather its system for delivering that information. . . . Contractual relationships with various organizations, designed to increase the agency's ability to acquire . . . information would be destroyed if the tapes could be obtained essentially for free." SDC Development, 542 F.2d at 1120. The "FLITE" computer system, a portion of which plaintiff is seeking, is a collection of legal databases acquired in part through data exchanges with other agencies and private publishers. (Unterspan Decl. P 7.) The Air Force continues to rely on such exchanges, which would be rendered impossible if plaintiff's request were granted because the commercial value of the computerized data would be lost. Id.
For the foregoing reasons, defendant's motion to dismiss for lack of subject matter jurisdiction is GRANTED, and plaintiff's motion for summary judgment is DENIED.
DATED: March 10, 1995
Fern M. Smith
United States District Judge