I will say that in general, if a citizen wants to get software released, there can't be any harm in filing a FOIA request. Sometimes the law will require a release under the FOIA rules. Sometimes a department or agency may establish policies or interpretations that require release, even if the law doesn't specifically require it. And a program may decide that, even if they are not *required* to release under FOIA, they will release it anyway. Obviously, such a request will be denied if it's classified, etc., but that would be true anyway.
--- David A. Wheeler
================== From CENDI ========================
6.7 Is software considered an agency record covered by the Freedom of Information Act (FOIA)?
Generally, no, although in some instances, computer software may have to be treated as an agency record and disclosed under the FOIA. These situations are rare, and should be reviewed on a case-by-case basis to determine whether the data on the software requires that it be treated as an agency record subject to FOIA.
Releasing open source software under FOIA may be problematic if it contains sensitive or critical data. Thus, in addition to the security concerns discussed in FAQ 4.0, agencies should also consider whether software that they use or distribute under an open source licensing arrangement would be considered an agency record.
Specific examples of computer software treated as an agency record that may be processed under the FOIA include software that: (1) contains an embedded database that cannot be extracted and is itself releasable under the FOIA; (2) reveals information about agency policy, functions, decision making, or procedures; or (3) is so related to such an accompanying database that the database itself would be unintelligible or unusable without the software. In the first scenario, both the data and the software must be reviewed for release or denial under the FOIA.
See relevant regulations and cases addressing this issue, such as 32 C.F.R. 518.10 (c), Gilmore v. Department of Energy, 4 F. Supp 2d 912 (N.D. CA 1998), and DeLorme Pub. Co. v. NOAA, 907 F. Supp. 10 (D. Me 1995).
I concur: Gilmore vs. DoE case was the one I was referring to, based
on discussion at the CENDI OSS workshop. It looks like the door isn't
as shut as it was presented to me, but it's not very open either.
On Wed, Aug 18, 2010 at 7:24 PM, Christopher Sean Morrison
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