[License-discuss] US Army Research Laboratory Open Source License proposal

[Christopher Sean Morrison]

> I have personally, on occasion, considered filing a Freedom of Information Act request for useful government code to see if that works to pry free software from government hands. I never did that. The U.S. government has almost always proven to be very generous without demands.

Please do, this issue needs to be pressed!  Doesn’t hurt to file a FOIA.

As far as I know, the answer as to whether software is considered an “agency record” subject to FOIA requests depends on the nature of the specific software and (unfortunately) the agency involved.  Last survey, approximately 50% of agencies felt software did not constitute a record, that most software is merely a tool for generating or processing records.  Some agencies have and do deliver despite holding a position that they are not required to do so.  Others feel that even as records, they fall under FOIA exemption clause 5 U.S.C. § 552(c)(2) — namely that software solely pertains to the internal practices of an agency.

DoD is split.  Air Force holds that most software is a record (save for classified, T&E, covered-by-statute, or otherwise clearly exempt codes — DoD Reg 5400.7).  Navy vaguely concurs (SECNAV 5720.42F).  Army disagrees saying they do not consider most software to be a record (AR 25-55).

Much longer discussion:
https://www.justice.gov/oip/blog/foia-update-department-justice-report-electronic-record-foia-issues-part-ii

Also relevant:
https://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/procedural-requirements_0.pdf

Several cases have gone to court making determinations swinging both ways (e.g., Gilmore v DOE: software not a record; Cleary, Gottlieb, Steen & Hamilton v DHHS: software is a record).  As such, “it depends."

Cheers!
Sean