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March 10, 1995

ROBERT D. BAIZER, Plaintiff,

The opinion of the court was delivered by: FERN M. SMITH


 These motions require the Court to decide whether an agency must provide a copy of a computer database containing the decisions of the United States Supreme Court to a requester under the Freedom of Information Act ("FOIA"). 5 U.S.C. § 552. Because such a database is library reference material and is therefore not an "agency record" within the meaning of 5 U.S.C. § 552(c), the agency is not required to provide a copy.


 On July 19, 1993, plaintiff Robert D. Baizer ("Baizer"), an attorney residing in Oakland, wrote a letter to the Department of Justice in which he requested an electronic copy of its computerized legal information database known as "JURIS." The Department of Justice referred plaintiff's request to the Department of the Air Force ("Air Force"). On February 9, 1994, plaintiff wrote to the Air Force Legal Information Service to request the decisions of the United States Supreme Court in electronic media form. This request specifically excluded any privately owned research information.

 The Air Force denied plaintiff's request in a letter dated March 4, 1994. The letter indicated that the decisions after 1975 could not be released because they are the copyrighted material of the West Publishing Company and that the other decisions would not be released because they do not constitute "agency records" under the FOIA. Plaintiff appealed the decision not to release the non-copyrighted material, and the Air Force denied the appeal, responding that the data "are library materials acquired solely for the purpose of reference, and therefore not subject to mandatory release under FOIA." (Joint Stmt. Ex. F at 1.)

 Plaintiff filed suit on December 23, 1994 to compel the Air Force to make available its computerized copies of Supreme Court decisions through 1975. On January 27, 1995, the Air Force filed a motion to dismiss for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1), and on February 8, 1995, Baizer filed an opposition and a motion for summary judgment under Federal Rule of Civil Procedure 56.


 I. The Legal Standard

 Under 5 U.S.C. § 552(a)(4)(B), federal subject matter jurisdiction in a FOIA case "is dependent on a showing that an agency has (1) 'improperly' (2) 'withheld' (3) 'agency records.'" United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142, 106 L. Ed. 2d 112, 109 S. Ct. 2841 (1989). The issue of jurisdiction is therefore intertwined with the merits of plaintiff's case. "In ruling on a jurisdictional motion involving factual issues which also go to the merits, the trial court should employ the standard applicable to a motion for summary judgment, as a resolution of the jurisdictional facts is akin to a decision on the merits." Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983).

 In order to withstand a motion for summary judgment, the opposing party must set forth specific facts showing that there is a genuine issue of material fact in dispute. Fed. R. Civ. P. 56(e). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In the absence of such facts, "the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 II. Analysis

 Plaintiff is not the first to attempt to use the FOIA to force a federal agency to release a computer research database. In SDC Development Corp. v. Mathews, 542 F.2d 1116 (9th Cir. 1976), the Ninth Circuit addressed "whether a complete reference library of medical writings and publications, accumulated and stored in a computer data bank by an agency of the federal government, constitutes 'agency records' for the purposes of [the FOIA]." Id. at 1117. Concluding that it did not, the court distinguished the library reference system from the records Congress sought to provide access to in passing the FOIA on the grounds that "the library material does not directly reflect the structure, operation or decision-making functions of the agency" and, as the contents of the database were publicly available, "the danger of agency secrecy . . . is not a consideration." Id. at 1120. Likewise, the database Baizer seeks is maintained for reference purposes only, and the Supreme Court decisions it contains are readily available both in public libraries and from other computerized reference services such as Lexis and Westlaw. The database is therefore not an "agency record" subject to the mandatory disclosure provisions of the FOIA.

 Plaintiff contends that because the term "agency records" is not defined in the FOIA, anything in an agency's possession not falling within one of the statutory exemptions must be produced. The Ninth Circuit rejected this very same syllogism in SDC Development. See 542 F.2d at 1118. It is well established that physical location alone cannot confer agency record status. Kissinger v. Reporters Committee for Freedom of Press, 445 U.S. 136, 157, 63 L. Ed. 2d 267, 100 S. Ct. 960 (1980); Forsham v. Harris, 445 U.S. 169, 185 n.16, 63 L. Ed. 2d 293, 100 S. Ct. 977 (1980). In its most recent case involving the definition of agency records, the Supreme Court set forth two requirements: (i) "an agency must 'either create or obtain' the requested materials" and (ii) "the agency must be in control ...

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