[cross posted on LegalResearchPlus]

On July 1st, the Court of Justice for the European Communities issued a judgement on access to legal opinions and it offers good news. (Judgment of the Court of Justice in two joined cases C-39/05 P & C-52/05 P, Sweden and Turco v Council and Others, July 1, 2008):

The headline on the court's press release reads: THE COURT AUTHORISES, IN PRINCIPLE, ACCESS TO LEGAL ADVICE GIVEN TO THE COUNCIL ON LEGISLATIVE QUESTIONS [bold text appeared in release]. The press release of the Court also states:

The Court takes the view that disclosure of documents containing the advice of an institution’s legal service on legal questions arising when legislative initiatives are being debated increases transparency and strengthens the democratic right of European citizens to scrutinize the information which has formed the basis of a legislative act.

The Court concludes that Regulation No 1049/2001 imposes, in principle, an obligation to disclose the opinions of the Council’s legal service relating to a legislative process. There are, however, exceptions to that principle as regards opinions given in the context of a legislative process, but being of a particularly sensitive nature or having a wide scope that goes beyond the context of the legislative process. In such a case, it is incumbent on the institution concerned to give a detailed statement of reasons for such a refusal.

For excellent analysis and updates on this topic, check out the Statewatch Observatory on Access to EU Documents.

[cross posted on LegalResearchPlus]

From Inside Google Book Search

"How do you find out whether a book was renewed? You have to check the U.S. Copyright Office records. Records from 1978 onward are online (see http://www.copyright.gov/records) but not downloadable in bulk. The Copyright Office hasn't digitized their earlier records, but Carnegie Mellon scanned them as part of their Universal Library Project, and the tireless folks at Project Gutenberg and the Distributed Proofreaders painstakingly corrected the OCR."

"Thanks to the efforts of Google software engineer Jarkko Hietaniemi, we've gathered the records from both sources, massaged them a bit for easier parsing, and combined them into a single XML file available for download here."

[Hat tip to BoingBoing for this news!]

[Cross posted on LegalResearchPlus]

We love free stuff!

And, thanks to the Center for Governmental Studies, an interesting free resource is now available. The folks at CGS have just created the PolicyArchive.

According to the PolicyArchive website:

"PolicyArchive is an innovative, new digital archive of global, non-partisan public policy research. It makes use of the power, efficiency, and economy of modern Internet technology to collect and disseminate summaries and full texts, videos, reports, briefs, and multimedia material of think tank, university, government, and foundation-funded policy research. It offers a subject index, an internal search engine, useful abstracts, email notifications of newly added research, and will soon expand to offer information on researchers and funders, and even user-generated publication reviews. Over time, it will grow to include policy content from international and corporate organizations."

They ask that you register on the front page. But take a look at the site. You can view 12,000 plus documents, including some CRS reports. There are also handy indexes, too. Take a look and if you have research to contribute to the site, they have a link for adding content. I also signed up for the free newsletter for the latest policy additions to the collection.

Hat tip to the terrific Sunlight Foundation blog for spotting this new resource.

Carl Malamud’s Oregon page is now updated with the testimony from last week’s hearing:

http://public.resource.org/oregon.gov/

From Tim Stanley's Justia blog:

"Oregon's Legislative Counsel Committee had a meeting this morning to discuss the copyright claim on the Oregon Revised Statutes. After taking legal counsel from Dexter Johnson, talking with Karl Olson, Carl Malamud, three Oregon citizens and myself, they unanimously voted to not to enforce any copyright claims on the Oregon Revised Statutes. This great!!!"

And, I just read this on BoingBoing:

[Posted by Cory Doctorow]

"Rogue archivist Carl Malamud sez,

"Justia and Public.Resource.Org were invited, along with Karl Olson our counsel, to testify before the Oregon Legislative Counsel Committee. We were joined by a public panel of wikipedians and open source advocates."

"The process was incredibly well organized. There was a comprehensive briefing packet prepared for the committee, the members asked lots of intelligent questions, and then Dexter Johnson the Legislative Counsel recommended to the committee that they waive assertion of copyright on their statutes. The Majority Leader placed the motion, the President of the Senate called the vote, and the vote was unanimous. This was democracy in action and was great to watch."

[cross posted on Legal Research Plus]

For those of you following the question regarding the copyright of Oregon's Revised Statutes, you might want to visit: public.resource.org/oregon.

The State of Oregon has scheduled a hearing for June 19, 2008 to “consider its copyright policy in light of technological developments and the Internet.”

And, the Public.Resource site now has links to the testimony submitted by Carl Malamud, Tim Stanley and Karl Olson.

Also, if you want to listen to the hearing on Thursday, June 19th, there is a Real Video feed available .

[cross posted on legalresearchplus]

We are pleased to announce the AALL Hot Topic for the annual meeting in Portland, Oregon will be Push Back and Push Forward – Open Access in Oregon and Beyond. So mark your calendars: Sunday, July 13th at 4:15pm.

The program will feature Carl Malamud (public.resource.org) and Tim Stanley (Justia.com).

Recently, the State of Oregon Legislative Counsel Committee sent Justia a notice of copyright infringement and demand to cease and desist online publication of the Revised Statutes online. Carl Malamud and Tim Stanley will share the story of this struggle to keep the laws of Oregon freely available.

But what about the rest of the country? Can state governments prohibit others from downloading, reproducing or distributing their laws? Can courts provide similar restrictions by the nature of their vendor dealings (they do in California!)? Carl Malamud and Tim Stanley will address these questions, too, sharing their concerns and experiences in this area.

This session will provide both an update on a timely issue, and serve as a call to action on how each of us can get involved in the open access movement.

And, on the topic of Oregon, Peter Forsyth has an interesting post on the WikiProject Oregon site. I pasted it below for further reading and perhaps an inspiration for getting involved.

From WikiProject Oregon, posted by Peter Forsyth:

This Thursday, the Oregon Legislative Counsel Committee (LCC) will be holding a hearing that should be of major interest to anyone with an interest in Oregon law, and in building (or using) public resources on the Internet. The topic: whether or not the laws that we, the people of Oregon write are in the public domain, or whether the State can prevent their republication by insisting on licensing arrangements.

A couple months back, the LCC — which provides legal advice to the state legislature, and edits draft legislation — issued a takedown notice to justia.com, which was hosting the Oregon Revised Statutes. Justia is a web site that publishes state laws (free of charge, and without advertising) from all states, in a standard format.

Legislative Counsel Dexter Johnson issued the takedown notice under direction from the LCC, and cited a 1953 law that gives it authority to make determinations about ownership of various works of the Legislature. He wrote that although the words of the laws themselves are in the public domain, some of the text involved in their publication — the section numbers, descriptive text, etc. — is owned by the State, and protected by copyright.

California-based nonprofit public.resource.org has been the leading advocate for getting this policy changed. They have retained counsel to challenge the policy. Their research indicates both that there aren’t solid legal grounds for this policy, and that it is contrary to the public interest.

The LCC has invited Public.resource.org to give testimony at their next public meeting, but there is no formal representation for Oregon’s community of wiki editors, bloggers, etc.

I expect to testify at the hearing, and would welcome the company of any other Oregon folks. Let me know if you want to come! Additionally, I’d encourage you all to write your legislators (find out who they are here), and the members of the LCC. I’ll try to work up a standard letter in the next day or two, so you don’t have to compose from scratch; watch this post for further news.

[cross posted on LegalResearchPlus]


The good folks at public.resource.org have just released a new collection on their site: Justice.gov. This collection, once known as FLITE and then later as JURIS, is a digital collection of federal case law. The story behind this is quite fascinating, too.

From the Public.Resource.org site:

"Back when disco was king, the USAF decided that those new-fangled computers might be just the thing for the JAG Corps, so they set a bunch of flyboys down in front of keypunch machines and made a database of U.S. law called FLITE. After several turf-grabbing campaigns and a massive meeting of BOGSATT, the system was taken over by the Department of Justice and re-dubbed JURIS."


"But, the lawyers in Justice were jealous of their pin-stripe buddies in private practice, so they got themselves high-priced West and Lexis-Nexis accounts so that they could be professional. Then, they deleted the JURIS database from government computers so there would be no going back. Today, the U.S. government does not possess a digital copy of the cases and codes that make up the law of the land."

"One copy of JURIS survives, acquired by the Linguistic Data Consortium (LDC) of the University of Pennsylvania and available under a carefully restricted license agreement to those who pay the sum of $800 and agree not to redistribute the data. The LDC is a group of linguistic researchers and they acquire corpora of linguistic interest to analyze. By prohibiting redistribution and binding their members to such constraints, they are able to acquire commercial databases to analyze."


"Public.Resource.Org has purchased a copy of the JURIS database and we have requested that the Linguistic Data Consortium free this public domain data so that it may be examined by all. The database consists of 1,665 files totaling 3.1 gbytes. The 522 mega-words in the corpus yields approximately 2,091,628 pages of text."


"UPDATE: Friday, 13 June 2008. We have made the JURIS database available so that you may judge for yourself the importance of these files. You may browse the directory or download the 900 Mbyte tarball. There is a compelling public policy issue in the fact that the Department of Justice deleted 2 million pages of case law after establishing their for-pay contract with a commercial concern. Why did the government delete such a valuable asset that was created at taxpayer expense? Why would a copy not be kept just in case? Why does the government not have a digital copy of their own work product? These are questions of national concern and the public has a right to examine the evidence."

[cross posted on LegalResearchPlus]

Statement Of Patrice McDermott, Director of OpenTheGovernment.org

Subcommittee on Intelligence, Information Sharing and Terrorism Risk Assessment, Committee on Homeland Security

H.R. 6193, The "Improving Public Access to Documents Act,"
Hearing: Wednesday, June 11, 2008

[excerpt from the prepared testimony]

"We have experienced a trend in our country away from trust in the public to a “need-to know” mind set. A few, primarily federal, departments and entities have either, in a few cases, been designated or have arrogated to themselves the power to say who has a need-to-know and only governments and a few private sector entities have been deemed worthy. The public and the press have been almost entirely excluded. At one point, the Department of Homeland Security even attempted to make Congressional staff sign nondisclosure agreements in order to prove they could be trusted into the inner circle of those
legitimate few.

Again, there is absolutely some finite amount of information that, for a certain amount of time, needs to be shared only in a limited fashion. The problem for the public is that we have “translucence, not transparency, i.e., transparency within the network, but opacity to those outside.”* The "need-to-share"" cannot be limited to agencies within governments and defense and homeland security contractors; it also must include, to the greatest extent possible, sharing relevant information with the public. The White House Memorandum and this legislation both recognize this by requiring “portion marking,” so that information in a document that is eligible for disclosure can be made public."

*Elizabeth Rindskopf Parker, “Translucence Not Transparency: Reviewing Alasdair Roberts, Blacked Out: Government Secrecy In The Information Age.” I/S: A Journal Of Law And Policy For The Information Society, Vol. 2, Issue 1 (2006).

This was a really interesting post that I found on the Sunlight Foundation's Sun Spots blog:

"Earlier today, Lawrence Lessig spoke about Change Congress at the Free Press' fourth annual National Conference for Media Reform, being held this year in Minneapolis. As always, Larry gave a killer speech. You can watch an earlier speech he gave at the National Press Club in March when he launched Change Congress here."

"Not to be missed: In the current edition of The Nation, Christopher Hayes, the magazine's Washington editor, profiles Larry and Change Congress. It's an extensive profile and a good read. ...Cory Doctorow called the profile "fantastic." Hayes writes "playing David to various Goliaths (armed with a laptop as slingshot) is the defining narrative of Lessig's career." If you're a Lessig fan, it's a must read. If you're unfamiliar with this bona fide and burgeoning cult hero, check it out...And join the revolution!"

[cross posted on legalresearchplus]

Wisconsin’s Public-Records Law: Preserving the Presumption of Complete Public Access in the Age of Electronic Records, by Leanne Holcomb and James Isaac, 2008 Wisconsin Law Review 515 (2008).

Under Wisconsin’s public-records law, the public is permitted access to the actions of government officials in order to act as an effective check on government power and give force to the democratic system. This policy translates into the legal right of inspection by any person of any public record, . . . Over the last three decades, however, statutes have not kept pace with technological advancements that have dramatically transformed public records, threatening the presumption of complete public access. The emergence of electronic documents as the preeminent record of government activity has complicated the application of existing public-records law to records-retention practice and the disclosure of public records. As e-mail illustrates, primary electronic documents are often capable of being “deleted,” but not in the traditional sense of this term. this difference begs the question whether deleted e-mail, and other deleted electronic documents like it, belongs to the public record and should be disclosed upon request. This Comment argues for an answer in the affirmative.

Additionally, the creation of each primary record in electronic form includes numerous unseen secondary records, such as metadata, that do not accompany traditional paper records. While secondary records are unintentionally created, they nonetheless provide a considerable amount of information about the creation and history of the record, information that is sometimes of great use to the requester and arguably in line with the existing statutory definition of record. Wisconsin needs to address these electronic-records issues in order to maintain an up-to-date and relevant public-records law. This Comment therefore suggests adapted statutory language and continued judicial recognition of electronic documents’ peculiarities, aiming to modernize the public-records law and provide a solid platform from which the legislature can address inevitable technological advances in the future.

[Cross posted on legalresearchplus]

Shrinking access to EU documents? This is from a press release on the European Ombudsman site:

“The European Ombudsman, P. Nikiforos Diamandouros, has called on the European Parliament (EP) to defend the European Union’s commitment to transparency and the citizens’ right of access to EU documents. This follows the European Commission’s recent proposals to revise the law on public access to documents. In his contribution to today’s public hearing in the EP’s LIBE Committee (Civil Liberties, Justice and Home Affairs), the Ombudsman said:

“The Commission’s proposals would mean access to fewer, not more, documents. This raises fundamental issues of principle about the EU’s commitment to openness and transparency.”

Read the entire contribution given by the Ombudsman

The EU proposals sharply limit the definition of what is a “document” — ”The Commission’s proposed definition of a document would mean that, in many cases, citizens could only apply for access to a document if it appeared in a register.”

Read the full text of the EU proposal to revise Regulation 1049/2001: “Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL regarding public access to European Parliament, Council and Commission documents” [4/30/2008]

Hat tip to the lawlibrarians blog for tracking this!

(cross posted on legalresearchplus.com)

Earlier this month the National Archives and Records Administration released their Strategy for Digitizing Archival Materials for Public Access, 2007-2016. This is a follow-up to a draft policy released in September of last year.

A fair amount of the report discusses the use of partner organizations in the digitization effort. The draft relased in September was open to public comment, and NARA has posted their responses to those comments here.

(Thanks to the American Association of Law Libraries Washington Office and their monthly E-Bulletin)

[Cross posted on Legalresearchplus.com]

The New York State Office for Technology and the New York State Archives, has just issued a report that "examines how the state can provide choice, interoperability and vendor neutrality in electronic document creation while ensuring electronic records are preserved and remain accessible."

"The report [“A Strategy for Openness: Enhancing E-Records Access in New York State”] recommends establishing a statewide, cross-government Electronics Records Committee to address, in a formal, long-term and collaborative manner, all aspects of electronic record creation, management and preservation. The committee would facilitate state agency adoption, place the vendor community on notice of the state’s strategic direction and long-term commitment for technology openness, and ensure this commitment is institutionalized throughout the state enterprise and survives government leadership transitions. Another recommendation suggests the committee develops and publishes a final open records policy, and begins issuing a series of standards and guidelines for implementing the policy."

Hat tip to BeSpacific

Nextgov reports that the Bureau of Indian Affairs is free to reconnect itself to the Internet, thanks to a Washington D.C. District Court ruling earlier this month.

Interior allowed to reconnect to Internet, by Gautham Nagesh, Nextgov, May 21, 2008.

District Judge James Robertson granted on May 14 motions filed by [Deparment of the] Interior requesting that the Bureau of Indian Affairs, the Office of Hearings and Appeals, the Office of the Special Trustee, and the Office of Historical Trust Accounting be allowed to reconnect their networks to the Internet.

The BIA network was ordered to shut down in 2001 amid accusations of poor data security in the ongoing Cobell v. Kempthorne class action case.

Security questions remain, however.

[Judge] Robertson acknowledged that Interior’s IT security may still be inadequate. “The congressional and inspector general reports indicating that the Interior Department, overall, continues to receive failing grades on its IT report card are troubling, but I have no authority to act in response to them, nor do I have any colorable suggestion that the declarations before me … were made in bad faith,” he wrote.

As of this writing, the BIA site has not been fully restored. According to Interior chief information officer Michael Howell, it is expected to take a couple of months for the BIA to reconnect.

-Brian Provenzale