Home » Library » This is not a drill. The future of Title 44 and the depository library program hang in the balance.

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Free Government Information (FGI) is a place for initiating dialogue and building consensus among the various players (libraries, government agencies, non-profit organizations, researchers, journalists, etc.) who have a stake in the preservation of and perpetual free access to government information. FGI promotes free government information through collaboration, education, advocacy and research.

This is not a drill. The future of Title 44 and the depository library program hang in the balance.

As we wrote last week the Government Publishing Office (GPO) has asked the Depository Library Council (DLC) to recommend changes to Title 44 of the US Code. We believe this is a bad idea at this moment in history and worry that the unspecified changes GPO wants will result in damage to the FDLP and long-term free public access to government information. We recognize that GPO may pursue this avenue anyway. We have now heard that there is a draft bill being worked on as we speak, so even the extremely short time-frame for public input suggested by GPO (AUGUST 31!!) may be too late for libraries to have *any* say in a law which deeply effects how libraries and the depository program work. We therefore present our suggestions to DLC. We invite you to submit your own recommendations and use any of our suggestions that you like.

I. Do Not open Title 44 to changes at this time

We believe that the wisest course of action at this time is to refrain from suggesting that Title 44 be amended at all. We have seen no evidence of any “champions in Congress” for GPO, FDLP, or long-term free public access to government information. In addition, the current political divisiveness in Congress and the current lack of support for government services in general makes it unlikely that we could get positive changes to Title 44. In fact, it seems to us more likely that we would get changes that converted free access to fee-based cost recovery or privatization or both. In short, We suggest you send your comments to DLC before the Aug 31 deadline and:

Recommend to DLC that GPO refrain from asking for changes to Title 44 at this time.

II. Principles of Free Public Access in the Digital Age

If DLC, or GPO, or the Committee on House Administration (CHA) — GPO’s oversight committee — insist on trying to modify Title 44, we believe the government information community should insist that some principles be preserved and even strengthened. The last time GPO voiced principles was 1996 (it repeated those principles in 2016). Although those principles are good as far as they go, they are grossly outdated in the digital age and do not adequately address either the nature of digital information or the needs of users in a digital age. We suggest you write to DLC and:

Recommend to DLC that any changes to Title 44 reflect these four principles:

  1. Privacy
  2. Preservation
  3. Free Access and Free Use
  4. Modernized scope of information covered by Title 44

III. Recommendations that Reflect Principles

We suggest that you recommend to DLC five changes to Title 44 that reflect the Principles of Free Public Access in the Digital Age (we have written about these principles many times, e.g. in our post on suggested revisions to OMB Circular A-130 “Managing Information as a Strategic Resource”, and there are other ideals out there from which to draw like the eight principles of open government data put forth by open government advocates). We are suggesting that you recommend changes to Chapters 17 and 41 as well as Chapter 19. GPO has only asked DLC to recommend changes to Chapter 19, but Davita Vance-Cooks indicated at a hearing last week — and we have heard from other quarters — that all chapters are open for modification. Chapters 17 and 41 are as important to the future of FDLP libraries and to their communities as is Chapter 19.

    We suggest that you write to DLC and recommend these changes to Title 44:

  1. Modernize definition of “publications.”

  2. Change the definition in § 1901 from “Government publication” to “public information” as defined in 44 U.S. Code § 3502 (12). Sample wording: “‘Government publication’ as used in this chapter, includes all ‘public information’ (44 USC 3502) which means any information, regardless of form or format, that an agency discloses, disseminates, or makes available to the public.” Include this same wording in § 4101. Sample wording: “provide a system of online access to digital ‘public information’ (44 USC 3502).”

  3. Retain and enhance Free use by the General Public.

  4. Modernize § 1911 to retain free access and to reflect the broader scope of Public Information. Sample text: “Depository libraries shall make all Public Information obtained through the depository program available for the free use of the general public.”

  5. Prohibit fees for govinfo.gov.

  6. Change wording of § 4102 to remove “fee” and replace with same “free” language as Chapter 19. Sample wording: “The directory and the system shall be made available to the general public without charge.

  7. Require Preservation.

  8. Make changes to § 1904 and 1905 to explicitly include “digital public information” that GPO will deposit by sending digital files (including metadata) to FDLP libraries. Define “digital depositories” as FDLP libraries that receive, store, preserve, and provide access to digital government information they acquire through the Depository Program. (GPO’s current use of terms such as “digital-only depositories” and “All or Mostly Online depositories” for libraries into which nothing is deposited are misleading to Congress and the public.) In addition, modify the text of § 1911 to define a class of FDLP digital preservation libraries. Those FDLP libraries will agree to retain all digital content sent through the depository program, will preserve that content, and will make it available for the free use of the general public. Add text to § 4101 requiring GPO to preserve and provide free public access to all the digital content that it adds to its “electronic storage facility for Federal electronic information.”*

  9. Add a privacy provision for govinfo.gov.

  10. Add a privacy provision to § 4101 (which defines the electronic directory and the system of online access — currently “govinfo.gov”). This provision would prohibit the use of technologies that track user individual-level activity. It would also prohibit GPO from cross-referencing any data gathered from web measurement and customization technologies against personally identifiable information to determine individual-level online activity, and from sharing any user data with other departments or agencies or non-government entities. It would also prohibit the use of third-party web measurement and customization technologies. Text for this section could be drawn from 5 USC 552a and from OMB memorandum M-10-22.

  11. Make all digital government information free.

  12. Modify § 1708 to: allow GPO to sell paper (including print-on-demand, and microformated) documents to retailers at a wholesale price; mandate that GPO offer to FDLP libraries as selectable items all print/POD documents that it offers for sale to retailers; prohibit GPO from selling ebooks, PDFs and other digital formats.

Write DLC Today!

This may be our last opportunity to persuade GPO to delay modification of Title 44 until it has a strong champion in Congress that will advocate changes that will enhance long-term free public access. If we must enter a discussion of modifying Title 44, it is essential that we do so with principles that will drive the changes. To enter discussions without such a clear vision would be unwise as it could easily lead to unwanted changes to the law which will erode the FDLP and GPO’s ability to support libraries and the public.

We should advocate changes that clearly support the principles of Free Public Access in the Digital Age.

We should oppose changes that only support specific tactics (such as redefining “deposit” as pointing to digital documents that are not deposited) or that support short-term goals (such as encouraging the discard of paper collections). Such changes do not support the principles of but actually reduce the flexibility of FDLP libraries in the digital age.

We invite you to send your recommendations to DLC before the Aug 31 deadline.

Authors:
James A. Jacobs, University of California San Diego
James R. Jacobs, Stanford University

Footnote

  • It is worth remembering that neither Chapter 19 (FDLP) nor chapter 41 (govinfo.gov) mentions the word “preservation” and, except for the the Congressional Record and the Federal Register, § 4101 leaves it up to the Superintendent of Documents to determine what content is added to — or withdrawn from — govinfo.gov. These changes would prevent GPO from removing content from govinfo.gov once it has been added and would give FDLP libraries the flexibility to select digital government information and build their own digital collections and services. They would also set up a new category of digital-depository preservation-partner that would strengthen long-term digital preservation without weakening GPO or govinfo.gov. These changes would complement, not replace govinfo.gov.
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    5 Comments

    1. Thanks for this post. I have written the DLC with a main recommendation to NOT try to address title 44 at this time. Looking at what’s being done with healthcare should give anyone pause about amending a public interest government program.

    2. Chapter 19 section 1911 of title 44 requires that regionals and depositories without regionals “shall retain Government publications permanently in either printed form or in microfacsimile form”. JCP in authorizing government publications publications being distributed to depositories in digital formats such as CDs has interpreted microfacsimile in a broad manner. JCP also interpreted printing to include digital formats. Since JCP considers government publications in many formats as publications, those publications are eligible for distribution to and access by depository libraries. Congress in passing the GPO Access1993 Act to authorize GPO to establish and maintain a data base of publications further established depository libraries as being entitled to digital publications of all kinds. Eliminating the possibility of charging for that access would be a good step in guaranteeing public access. Providing downloaded digital publications to depositories does not require a change in the law. it can be done by GPO asking JCP to approve it. Direct grants can be done initially by the appropriations committees approving it for a year. Appropriations only last for a year. The money can be provided each year. Beware of trading off direct grants for an electronic only depository library program.

      • Thanks for your comment Bernadine. We agree, and have written many times that the things that libraries supposedly need for “flexibility” can already be done WITH NO CHANGE TO TITLE 44. From shared housing agreements for regionals (though shared regionals across state lines was turned down by JCP in the KS/NB case) to the digitization of collections, these things do not need an update of the law. Therefore we can only conclude that those pushing for a rewrite of Title 44 are doing so to weaken GPO or the FDLP or both.

        Are there gaps in T44? Sure, but many of these gaps are there because the law (and all laws) are written vaguely so that agencies have broad authority to apply the law and write regulations in support of the law. Here’s my wish-list of those things needed to fill the holes in the current law and regulatory framework. T44 should:

        • Support GPO *AND* FDLP libraries as the best way to provide free public access to and preservation of govt information.
        • Define “microformats” to include digital, thus paving the way for digital deposit and the building of geographically dispersed digital collections in regionals and other libraries.
        • require agency publishing to specific standards (IMPs, website structures, deposit into Govinfo.gov)
        • require all executive agencies to deposit all published materials into govinfo.gov and/or share metadata with GPO and the public.
        • require that GPO make everything shareable (metadata, files) individually and in bulk to libraries. Encourage libraries to become true “digital” not “virtual” depositories (i.e., actually collect, preserve and give access to digital files rather than simply pointing to files on agency or GPO sites.
        • expand the “national bibliography” to include FOIA’d documents and agency FOIA reading rooms.
        • shut down the sales program and feed all of those publications into depository libraries.
        • Require regionals to be preservation hubs (or FIPnet partners) for their physical collections AND encourage them to become digital deposit libraries as well.

        As you correctly note, these things could also be done simply by GPO asking JCP, its oversight committee, to approve them.

    3. Thanks Bernadine and James.

      I worry that GPO knows it can change its policies but does not want to do so. Those policies were established more than 20 years ago and are out of date.

      I worry that GPO wants to use the current situation as an opportunity to change the law to lock in these out of date policies.

    4. I submitted this on the DLC form, based in part on the suggestions in James’s post-

      To the members of the US GPO Depository Library Council,

      You have asked for input on modernizing the Federal Depository Library Program’s statutory authority and other changes to Title 44 of the US Code.

      I am the founder of GovTrack.us, the free legislative research and tracking website that since 2004 has provided greater public access to the happenings of the U.S. Congress. Over the last year, our 10 million users viewed the text of bills in Congress nearly 2 million times on our website. We source the text of legislation, and corresponding metadata, from GPO’s FdSys. Although our product is fully digital, we are concerned, on behalf of our users, about broad and equitable public access to legislative information in all forms, today and in the future.

      Changes to Title 44 that make government publications more widely distributed, more durable, more annotated, and more accessible, in all forms including hard-bound, are welcome. Adding preservation requirements and statutorily prohibiting end-user fees for access to digital GPO publications would be welcome changes. Digitization efforts, which enhance both preservation and public access, especially for at-risk historical documents, would also be welcome.

      GPO must also recognize, and seek statutory clarity, that GPO’s role is not to be a central point of access for all government documents or information. A central point of access is a central point of failure. As with publishers in the private sector, GPO must work with its partners to distribute its products widely — relying on retailers such as FDLP depository libraries and organizations like my own to meet end-users where they are and to be a part of multifaceted preservation efforts.

      Expanding distribution and access of digital products should not come at the cost of reducing distribution, preservation, and access in other ways. We would not support changes to Title 44 that reduce the distribution of hard-bound materials, that allow or encourage discarding of hard-bound materials, or that replace hard-bound materials with digital products without corroboration by non-governmental archivists that such a reduction would not jeopardize access or long-term preservation of these important documents.

      Thank you,

      Joshua Tauberer
      founder, GovTrack.us

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