FoiaConsciousness.com LLC v. National Archives & Records Administration

Background

FoiaConsciousness.com LLC (FC) brought a claim under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, alleging that the National Archives & Records Administration (NARA) withheld two versions of the Zapruder film. Both parties moved for summary judgment, which asks the court to rule when there is no genuine dispute about facts important to the case.

The opinion says the undisputed evidence showed that researchers could visit NARA’s facility in College Park, Maryland, to view analog or digital copies of the film and make self-service DVD or VHS copies for their own use. Researchers did not have to visit personally because NARA provided a list of people who could conduct research and make copies. NARA also offered reproduction through selected vendors.

NARA generally reviewed vendor requests for information about copyright holders and reserved the right to require permission when the holder was known or could readily be determined. NARA told FC that DVD reference copies were available for viewing, vendor copies required permission from the copyright holder, and self-service copies could be made in the research room. NARA initially omitted the self-service option from its response but corrected the omission one week later and apologized for the confusion.

Court’s analysis

FOIA generally requires an agency to make requested records promptly available in the requested format when the records are readily reproducible in that format. The parties agreed that the films were agency records covered by FOIA.

The court also found that the requested versions were copyrighted. It noted that the federal government has waived sovereign immunity for copyright-infringement claims and that federal law protects libraries and archives from liability for unsupervised use of reproducing equipment on their premises when required copyright notices are displayed. NARA’s regulations state that users are responsible for obtaining necessary permission from copyright holders.

The court ruled that NARA did not violate FOIA by requiring proof of permission before facilitating vendor copies. In the court’s view, copies that NARA could facilitate only with copyright permission were not “readily reproducible” without that permission. FC had not identified anything in FOIA or case law showing that the agency-record designation overrode third-party copyrights, and FC had not explained why FOIA would require NARA to produce copies in a way that could expose the agency to copyright liability.

The court also rejected FC’s argument that NARA was using copyright as a means to suppress evidence concerning the assassination of President John F. Kennedy. The court said the record showed that NARA was following established procedures. It noted that FC could make a self-service copy at its own risk or seek permission from the copyright holder, and that FC had not shown it asked for permission or that doing so would have been futile.

The court declined to decide the validity of the copyright because the copyright holder had been voluntarily dismissed from the case. It also said that a prior decision concerning the Zapruder film did not affect this dispute. The court did not address the parties’ remaining arguments about FOIA Exemption 4 or allegations of cover-ups and government misconduct. It assumed, without deciding, that the failure to join the asserted copyright holder did not require dismissal under Federal Rule of Civil Procedure 19(b).

Disposition

NARA’s motion for summary judgment was granted. FC’s cross-motion for summary judgment was denied. The court stated that judgment would be entered separately against FC. The opinion did not state that either motion was granted or denied with or without prejudice.