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March 13, 1998

JOHN GILMORE, Plaintiff,

The opinion of the court was delivered by: ORRICK


 In this action brought by John Gilmore ("Gilmore") against the United States Department of Energy ("DOE") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, both parties now move for summary judgment. For the reasons set forth below, DOE's motion for summary judgment is granted in part, and denied in part. Gilmore's motion for summary judgment is denied in its entirety.


 On December 8, 1993, Gilmore filed a FOIA request with DOE, seeking access to all agency records pertaining to the CLERVER conferencing technology. CLERVER was created by Sandia National Laboratories/New Mexico ("SNL"), is owned by Sandia Corporation ("Sandia"), and has been licensed to several private parties, including SunSolutions, Inc. ("Sun"). CLERVER is video conferencing software that allows people in different geographical locations to simultaneously collaborate on complex technical drawings and schematics using their desktop computers. Gilmore requested a copy of CLERVER, as well as all documentation relating to CLERVER, including the source code. He also requested all records that pertain to the rationale for making CLERVER available to Sun, but not to the general public. Gilmore intends to disseminate all of these records on the Internet.

 By letter dated May 2, 1994, DOE denied Gilmore's request in its entirety on the ground that (1) the software was not an agency record; (2) the other information about the software was not in DOE's possession; and (3) the information was exempt from disclosure because it was commercially valuable. On May 27, 1994, Gilmore appealed DOE's denial of his request. On June 29, 1994, DOE denied his appeal.

 This action was filed on January 24, 1995, and an amended complaint was filed on March 2, 1995. Gilmore seeks:

 1. disclosure of CLERVER and related documents;

 2. to enjoin DOE from denying FOIA requests for computer software on the ground that software is not an agency record;

 3. a declaration that DOE's failure to publicly define the terms "contractor" or "contractor records" renders its "contractor records" regulations null and void as applied to Gilmore and any other person without actual notice of their terms, and requiring DOE to publish definitions of these terms in the Federal Register;

 4. a declaration that federal laboratories such as SNL are agencies of DOE subject to the FOIA, and that records of federal laboratories produced under their management and operations contracts with DOE are agency records subject to the FOIA that cannot be withheld under FOIA Exemption 4;

 5. a declaration that DOE's pattern and practice of failing to issue a determination of FOIA requests within the ten-day statutory period is unlawful;

 6. a declaration that DOE's failure to provide adequate information during the administrative process about the withholding of records is unlawful; and

 7. an award of costs and fees.

 Gilmore brings these claims under the FOIA, the Administrative Procedures Act, and the Fifth Amendment of the United States Constitution. The parties have now filed cross-motions for summary judgment.



 "The basic purpose of the [FOIA] is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 57 L. Ed. 2d 159, 98 S. Ct. 2311 (1978) (citations omitted). The FOIA was intended to establish a general philosophy of full agency disclosure and to close the loopholes that allowed agencies to deny legitimate information to the public. GTE Sylvania, Inc. v. Consumers Union of the United States, 445 U.S. 375, 385, 63 L. Ed. 2d 467, 100 S. Ct. 1194 (1980). In accordance with those goals, the FOIA provides that "each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person." 5 U.S.C. § 552(a)(3). Nine specific categories of records are not required to be disclosed. 5 U.S.C. § 552(b). "But unless the requested material falls within one of these nine statutory exemptions, the FOIA requires that records and material in the possession of federal agencies be made available on demand to any member of the general public." Robbins Tire, 437 U.S. at 221. The only exemption claimed to be relevant here is Exemption 4, the exemption for "trade secrets and commercial or financial information obtained from a person and privileged or confidential." 5 U.S.C. 552(b)(4).

 The FOIA vests jurisdiction in federal district courts to enjoin an 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). Federal jurisdiction is thus dependent upon a showing that an agency has (1) improperly (2) withheld (3) agency records. Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150, 63 L. Ed. 2d 267, 100 S. Ct. 960 (1980). The threshold question in this case is whether the requested documents relating to CLERVER are agency records within the meaning of the FOIA.

 Under the FOIA, the term "agency" includes "any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency." 5 U.S.C. § 552(f). Private organizations receiving federal financial assistance grants are not within the FOIA definition of "agency," absent extensive, detailed, and virtually day-to-day supervision. Forsham v. Harris, 445 U.S. 169, 179, 63 L. Ed. 2d 293, 100 S. Ct. 977 (1980).

 "Records" include "all books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business." Id. at 183 (applying the definition of a "record" from the Records Disposal Act, 44 U.S.C. § 3301, to the FOIA).

 Two requirements must be satisfied for materials to qualify as "agency records." United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 144, 106 L. Ed. 2d 112, 109 S. Ct. 2841 (1989) ("Tax Analysts I "). First, an agency must either create or obtain the materials. Id. Second, the agency must be in control of the requested materials at the time the FOIA request is made. Id. at 145. "By control we mean that the materials must have come into the agency's possession in the legitimate conduct of its official duties." Id. The FOIA applies only to records that have in fact been obtained, and not to records that merely could have been obtained, by the agency. Id. at 144. The relevant issue is whether a FOIA agency has created or obtained the material sought, not whether the organization from which the documents originated is itself covered by the FOIA. Id. at 146.

 Records of a nonagency can become agency records by contract. Forsham, 445 U.S. at 181. For instance, "Congress could have provided that the records generated by a federally funded grantee were federal property even though the grantee has not been adopted as a federal entity." Id. at 180. Under this test, it appears that records that are contractually owned by the government are agency records regardless of whether they are physically in the government's possession, because they have been obtained by the government and are within the government's control.

 The burden is on the agency to demonstrate that the materials sought are not agency records or have not been improperly withheld. Tax Analysts I, 492 U.S. at 142 n.3. Placing the burden of proof upon the agency puts the task of justifying the withholding on the only party able to explain it. Id.



 The Court begins by examining who was in control of CLERVER and the related CLERVER records on December 8, 1993, the date of Gilmore's FOIA request. The contracts between DOE and Sandia for the operation of SNL provide that, subject to exceptions not relevant here, all records acquired or generated by Sandia in its performance of the contract are the property of the government. (Index to Exs. ("Index"), Vol. II, Ex. C, app. B, art. B-XXXI at B65; id. Vol. I, Ex. B, P H-18(a) at 16.) The contracts also provide that the government will control the rights to all intellectual property created pursuant to the contracts, but that Sandia can request that it be permitted to retain title if it intends to take reasonable steps to commercialize the intellectual property that it has created. (id. Vol. II, Ex. C, app. D, pt. II, P 3 at D11-12 and P 20 at D25; id. Vol. I, Ex. B, P 63(b)(1)(i) at I-65, and P 63(e) at I-67.) If permission to retain title is granted, the government receives a nonexclusive license to use the intellectual property on behalf of the United States. (Id. Vol. II, Ex. C, app. D, pt. II, P 15 at D23; id., Vol. I, Ex. B, P 63(e)(1)(iii)(C) at I-69.) On July 2, 1993, DOE granted permission for Sandia to assert copyright in the CLERVER software. (Elliott Decl. Ex. E P 12.) Previously, in 1992, the government also had assigned to Sandia the title to a patented invention that is incorporated into CLERVER. (Id. P 14.)

 Accordingly, on December 8, 1993, the date of Gilmore's FOIA request, the government owned all records relating to the development of CLERVER, and owned a nonexclusive license to use CLERVER itself. Sandia owned the copyright in CLERVER, which gave it the exclusive right, subject to the license retained by the government, to make copies of CLERVER and to distribute it to the public. 17 U.S.C. § 106. Sandia also owned exclusive rights in a patented invention that is incorporated into CLERVER, subject to a license to the government. Id.

 The government does not, however, own CLERVER itself, but merely possesses a license to use it for government purposes. At least one recent case has found that the government does not control a record for FOIA purposes if it does not have unrestricted use of it. See Tax Analysts v. United States Dep't of Justice, 913 F. Supp. 599 (D.D.C. 1996), aff'd without opinion, 107 F.3d 923 (D.C. Cir. 1997), cert. denied, ...

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