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Here we go again: GPO wants to change Title 44

In case you missed it, in a simple announcement after the 2017 annual ALA meeting GPO Director Davita Vance-Cooks asked the Depository Library Council (DLC) to make recommendations for changes in Chapter 19 of Title 44 of the U.S. Code (Title 44 Modernization: Contribute Your Ideas, FDLP (June 27 2017).

This is a big deal. Chapter 19 of Title 44 is the very core of the FDLP. It not only defines the FDLP but it is the only legal guarantee that the government will provide its information for free to the General Public.

Changing the U.S. Code is a complex, lengthy, political process. The results of suggesting changes to the law are unpredictable. Even if you begin the process with clear, unambiguous, and lofty goals, the outcome can end with very, very bad unintended consequences.

Unfortunately, we are beginning the process without clear, unambiguous, much less lofty, goals. GPO threw this curve ball out without expressing any reasons or goals, and with an extremely short timeframe for comments.

That leaves it up to the government information community to respond and respond clearly to GPO. Is this something we want? Why? What will it accomplish? What are the potential unintended consequences and how do we avoid them?

Fortunately, the government information community has experience with this process. There have been many proposals to change Title 44 over the years (see GPO 2008 and O’Mahony) and just as many publicly made arguments for NOT changing the law (see Abbott-Hoduski and McKnelly, 2009). In 2011, then-Superintendent of Documents Mary Alice Baish summarized nicely the points that Daniel P. O’Mahony made at a session on “Creating Our Shared Vision” at the Fall 2011 DLC meeting. O’Mahony explained what was needed to successfully reform Title 44 while navigating all the “legal, political, logistical, and emotional issues”:

  1. A clear sense of what needs to be changed.

  2. The library community must speak with a united voice.

  3. There must be one or more champions in Congress to lead and shepherd a proposal through the legislative process.

Unfortunately, GPO is not providing the leadership necessary to meet those criteria. So, even if you think that Title 44 really really needs revisions — and we’ve been clear and very vocal against opening up that pandora’s box! — you should pause and ask a few very practical questions.

What does GPO Want?

The first and most important question is: What does GPO want to accomplish by changing Chapter 19? Unfortunately, GPO has not told us what they want or why or if they were directed to do this. It has not told us what parts of Chapter 19 they think need to be changed or why they need to be changed. It has not told us what changes it wants or what it would wish to accomplish with those changes. Did the Joint Committee on Printing (JCP), the Congressional committee charged with oversight of GPO, ask for changes?

GPO’s announcement invites comments, but says that DLC will not release a draft of recommendations until the DLC meeting in October. It also says that the depository community will have an opportunity to comment before the final version is submitted to the GPO Director, but it gave no other timeline or intentions or procedures.

Is GPO waiting for DLC or the community to develop goals? If so, this would be a crazy cart-before-the horse approach. (“Let’s decide we need to change before we decide why we need change or what change we need!”). Or, has GPO told DLC what it wants? Does GPO have specific goals in mind but does not wish to share them yet?

Whatever the answers are to those questions, we are certainly entering a complex, unpredictable process without meeting the first two requirements of having a clear sense of what needs to be changed and speaking with one voice.

The only hints GPO has given so far is found in two words in the announcement: flexibility and modernization. Here are the relevant excerpts from that announcement:

  • “revisions that provide depository libraries more flexibility
  • “suggestions for modernizing the Federal Depository Library Program’s statutory authority”

What does GPO mean by these words? Let’s examine them.

“Flexibility”. This word is both odd and troubling. It is odd because “flexibility” has, for nearly a decade, been a euphemistic buzzword for the desire by some Regional depositories to discard their paper collections. GPO used the term this way in 2008 in a draft report on Regionals in which GPO refered to sections 1911 and 1912 of Chapter 19 as “Legacy Sections of Title 44.” (GPO uses the word “legacy” to mean “unwanted”—Jacobs.)

Schonfeld & Housewright used “flexibility” more than 30 times in the 2009 Ithaka S+R report on the FDLP (which was rejected by GPO on submission). In 2013 Cynthia Etkin, the Senior Program Planning Specialist in the Office of the Superintendent of Documents, said that one of the major findings of the FDLP Forecast Study was that libraries needed more flexibility than Title 44 permits. Mary Alice Baish repeated that claim in a 2015 presentation about GPO’s National Plan. And, of course, the need for “flexibility” was in the 2015 letter to JCP that requested approval of GPO’s discard policy, which some Regionals had long sought.

One might reasonably assume that those libraries got the “flexibility” they wanted when GPO instituted that policy last year. But, no. In April of 2016, after the policy was approved, a DLC working group used “flexibility” in a report outlining several new models for Regional Depositories, some that would require changes to Title 44—including eliminating regionals entirely.

And, so, GPO’s use of this term is also troubling in the context of changing Title 44. What additional flexibility is needed? Why it is needed? What parts of Chapter 19 needs to be changed to get it? The fact that GPO is asking for change to the law without answering those questions is unnerving. We also wonder how GPO will respond if the community asks for “flexibility” that GPO does not want or does not have the budget or staff to deliver (e.g., “digital deposit” or grant-making authority to help FDLP libraries with physical conservation and digitization). Is GPO’s desire for change open or closed?

Add to this the fact that FDLP libraries already have lots of flexibility that GPO is not using and you have to wonder what GPO’s agenda is (Jacobs 2016).

“Modernization.” GPO’s use of this term is so vague that it could mean anything. Worse, it can have diametrically opposed interpretations. (It could mean that GPO wants to continue on its current path — which is twenty years old. Or, it could mean — dare we hope? — that GPO realizes it needs to come up with a new, more modern plan that fits the state of libraries and the information landscape in 2017 better than GPO’s 1996 model.) We don’t know, but we do have two hints as to GPO’s intentions.

First, there is the clear pattern noted above of advocating “flexibility” so that a few Regionals can discard their paper copies of their FDLP Historical Collections. It is possible that those Regionals are upset that they have not been able to discard a single volume yet — two years after GPO issued its discard policy. If so, the next step in this decade-long mission would be to change Title 44 so that even the weak rules of the discard policy can be ignored and Regionals can finally begin discarding the volumes they once pledged to preserve.

Second, GPO may be trying to instantiate into law its belief that the whole concept of “depositories” is obsolete. GPO first articulated this idea in its 1996 study proposing a “more electronic” FDLP, but it has used it to guide its policies and behavior ever since. These policies favor several characteristics: minimizing the responsibility and role of depository libraries, maximizing the role of GPO, and using contracts and negotiated agreements with “partners” instead of Title-44-based depositories for preservation and access.

Until GPO shares its goals and rationales and intentions with the community, all we can do is speculate. And that is not a promising way to enter into legislative change.

What Does the “General Public” Want?

If GPO is silent about what it wants, it seems blind to the needs of the General Public (44 USC 1911). There is no mention of “users” or “the public” or “communities” or any other indication that these changes are aimed to enhance access or utility of information for people. There are mentions of changes that would benefit “libraries” and “the program” — but nothing about people who use the information that the program and libraries are supposed to serve. Unfortunately, this is not surprising given GPO’s recent history of making administrative changes that ignore the effects of those policies on public access or explicitly reduce public access to government information.

What do we want?

In an age when so much information is easily accessible — but not so easily collected, described and preserved! — and when many librarians struggle to articulate the value of libraries, it will be up to government information professionals to analyze, describe, and give voice to the needs of users. When we express what we, as librarians, want, we have to speak not for the narrow interests of our individual institutions, but for the users (and potential users) of government information.

It is, frankly, premature to start making a list of what users need at a time when GPO is anxious to put the change-cart before the reasons-horse. When we begin making such a list, we can start by reviewing recent attempts to change Title 44. Some of those attempts have had some excellent goals. For example, there have been attempts to amend Title 44 to explicitly include digital government information in the scope of depository items. This would be nice, but GPO has shown that it can “deposit” digital information without Title 44 authorization as it does every day in the “USDocs” private LOCKSS network. We can also analyze known weaknesses and threats in the current system (Jacobs and Jacobs 2016). Perhaps the single biggest problem for FDLP is how to provide long-term, free public access to born-digital “fugitive” documents — those documents, reports and data that agencies create but do not send to GPO. As we have argued here before, this may be better tackled with administrative rules and regulations than by tampering with the US Code (Jacobs and Jacobs 2017).

But before we start enumerating goals (and then determining if changing Title 44 is the best way to accomplish them), we should pause to remember the existing strengths and opportunities of the current system. The most important strength of Chapter 19 is its instantiation into law the concept of Free Access for the General Public (Section 1911).

Free Access for the General Public

Chapter 19 of Title 44 is unique in mandating free public access to government information. Indeed, it contains the only legal mandate for the government to provide government information to the General Public for free.

Other chapters of Title 44 explicitly allow charging for government information. Chapter 17 enables GPO’s sales program (Section 1702). Surely, any attempt to “modernize” Title 44 would recognize that the sales program is both unnecessary and redundant in a digital age and “modernize” it right out of existence? But GPO has expressed no interest in modifying Chapter 17. And Chapter 41, which is the basis for FDsys and govinfo.gov, allows GPO to charge the pubic for their use (Section 4102), but, again, GPO has expressed no desire to change that.

If you are relatively new to FDLP, you may not be aware of the long history of recommendations to privatize government information and commercialize GPO (Jacobs 2011). As recently as 2013, the National Association of Public Administration (NAPA) report on GPO recommended that GPO consider charging for access to FDsys. These efforts have had moderate success (e.g., in privatizing individual publications such as the Statistical Abstract). Most (but not all) Public Printers (now “Director of the Government Publishing Office”) have opposed such efforts and even attempted to gain depository access to fee-based government information (e.g., “cooperative publications” [44 USC 1903], PACER, Public Health Reports).

But the legal basis for free government information is Chapter 19. Asking Congress to change this Chapter (and calling section 1911 a “legacy [unwanted] section”) is an invitation to those who wish to privatize, commercialize and impose “cost recovery” requirements on all government information.

Thinking Short-term and Long-term

The reason we find GPO’s vague call to change Title 44 so ominous is that changes to Title 44 have long-term effects. It would be short-sighted to recommend changes to Title 44 in order to meet the demands of a few FDLP libraries without examining the long-term consequences of those changes. It would be irresponsible to assume that we can ask Congress for changes to Title 44 and expect Congress to lay aside its own political agendas. (Remember the “Let Me Google That for You Act”? [Coburn])

Does GPO wish to maintain free public access to digital information? At this point in time, yes. In 2013, Davita Vance-Cooks explicitly rejected the NAPA recommendation to charge for access to FDsys.

But the only protection we have against the next Director of GPO who is privatization-happy or an advocate of cost-recovery, the only protection we have against a budget-stingy or corporate-friendly Congress is Chapter 19. And keep in mind that GPO’s twenty year old “electronic” strategy moves all access from Chapter 19 to Chapter 41 — where fees are explicitly permitted.

And, if you think that free-access could never be removed from Chapter 19, you should review the last 40 years of Congressional hostility to government services.

Does GPO have Congressional support for protecting free access? Is protecting free access more important to GPO than “flexibility” and “modernization”? We do not know. But we shouldn’t start this fraught process without knowing.

Time is short; comments are due to DLC by August 31, 2017. Send your comment soon!

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


Endnotes

Changes to Title 44 would enhance accountability and kill printed Federal Register

The federal technology news site FCW.com reports that The House Oversight and Government Reform Committee will vote on bills, which have been introduced in previous Congresses, that try to keep electronic government records from being altered or disappearing outright. One of the bills will also cease the printed version of the Federal Register.

H.R.1376 (The Electronic Message Preservation Act) would amend U.S. Code Title 44 to require that electronic messages that are deemed “Records” be preserved and made digitally accessible.

H.R.745, The Federal Records Modernization Act of 2017, requires that employees who tamper with, remove or destroy federal records be suspended or fired. It would also require agencies to publish online a description of records that have been — or may have been — lost, altered or destroyed. It will also stop the publication of a printed version of the Federal Register.

Title 44 (Chpt 29) News: Electronic Message Preservation

As we have seen through the conflict and problems of preserving White House e-mail, the law has not kept up with preservation of electronic messages.

A bill (H.R.5811, “The Electronic Message Preservation Act”) moving through Congress would address the problems by adding a new Section 2911 to Title 44, Chapter 29. It would require the electronic capture, management, and preservation of electronic records, require that they be readily accessible for retrieval through electronic searches, and would establish mandatory minimum functional requirements for electronic records management systems to ensure compliance with the requirements.

The Bush administration is threatening a veto:

The White House and officials at the National Archives and Records Administration (NARA) argue that the law gives NARA new responsibility and expands the agency’s job from advice to oversight, but the sponsors of the bill say that it only affirms the National Archives’ job of advising the White House on record-keeping.

The CongressDaily articles notes that:

A less-discussed but farther-reaching part of the bill updates the Federal Records Act to require federal agencies, also under standards set by the National Archives, to save all e-mail records electronically and create systems to allow electronic searches.

According to GAO and a committee report, most agencies now use “print and file” records systems for keeping e-mail, many of them spotty.

(See National Archives and Selected Agencies Need to Strengthen E-Mail Management, United States Government Accountability Office, GAO-08-742 June 13, 2008.)

A comment in the Committee Report (House Report 110-709, “Electronic Message Preservation Act” 110th Congress 2d Session, June 11, 2008) says:

To make federal agencies comply, I believe this legislation should include enforceable repercussion language. Ms. Patricia McDermott of OpenTheGovernment.org suggests this is the only way to make federal agencies comply with the Federal Records Act. Ms. McDermott states that she does not “think anyone has ever been prosecuted for destroying, much less failing to preserve federal records.” Just ask former Clinton EPA Director Carol Browner. She supposedly oversaw the destruction of her computer files in violation of a judge’s order requiring the agency to preserve its records.

GPO’s draft regional libraries report and FGI comments

A few weeks ago, the Government Printing Office released their draft report entitled, Regional Depository Libraries in the 21st Century: A Time for Change? and asked for comments until June 30. I’m not sure how many comments they received, but wanted to publish comments we submitted. Lynne Bradley, Director American Library Association Washington Office, DID submit comments that were endorsed by the Association of College & Research Libraries (ACRL), the Association for Library Collections & Technical Services (ALCTS), and the Government Documents Roundtable (GODORT). GODORT republished Ms. Bradley’s letter on their wiki.

While we are in general agreement with ALA’s letter calling for increased flexibility of Title 44 (*not* wholesale changes in the title) and increased appropriations for GPO initiatives and “regional depository libraries to help offset the costs of storing and preserving government property,” our comments deal with the more philosophical issues embedded in the draft report. Please let us know what you think.

I. Delete from the report all uses of the adjective “legacy” when referring to collections. The use of the word “legacy” as an adjective comes from computer science and is used to indicate things that are “outdated” and “undesirable.” When the report uses the phrase “legacy collections” it implies that it is referring to unwanted and outdated collections. (The report uses “legacy” as an adjective in only one other context: in its reference to sections 1911 and 1912 of Title 44 USC as “Legacy Sections” — apparently in order to define these section as out of date and undesirable.) Thus, the use of the phrase “legacy collections” is either inaccurate and misleading, or imprecise.

In its place GPO should use phrases that accurately describe the collections it wishes to discuss. For example, in place of “legacy collections” the report could uses phrases such as “collections without adequate bibliographic records” or “collections of print materials” or “collections without digital equivalents” or other phrases that accurately describe the collections GPO is referring to.

If GPO does wish to refer to unwanted out of date materials it should describe them that way explicitly rather than use the term “legacy.”

II. The report should more explicitly and accurately address the difference between roles and responsibilities that are legally mandated and those that have been assumed without a legal mandate.

Specifically, we object to the following sentences of the report (Section V.B. pages 16-17) that gloss over these differences. (These sentences refer to Public Law 103-40, The Government Printing Office Electronic Information Access Enhancement Act of 1993.)

The implementation of the GPO Access Act ushered GPO into the online age and accelerated the paradigm shift in the FDLP that changed GPO’s relationship with depository libraries. Regional depositories have the responsibility for permanent public access in the tangible publication environment. In the online information environment GPO has assumed primary responsibility for ensuring content and permanent public access. [emphasis added]

We suggest the following wording instead:

While the GPO Access Act specifically required GPO to “provide a system of online access” and to “operate an electronic storage facility for Federal electronic information,” it did not specify any change in the roles of the depository libraries. It added new roles for GPO, but did not reduce, alter, or delete the roles of depository libraries.

Since 1993, Congress has consistently provided funds to GPO for the “distribution” of government publications to designated depository libraries. This wording was carefully chosen. In 2000 the House attempted to substitute the wording “on-line access” for “distribution,” but that language was rejected.

Nevertheless, GPO has chosen to implement this law in a way that is shifting the relationship between GPO and depository libraries. GPO has chosen to assume responsibility for permanent public access to digital materials and has chosen not to offer digital deposit as an option to FDLP libraries.

This has resulted in a paradigm shift in access, preservation, and service within the FDLP. Instead of relying on FDLP libraries and their different locations, funding, and technological infrastructures, GPO has chosen to implement policies a) that do not “distribute” digital objects to FDLP libraries, b) that make it difficult for FDLP libraries to build local digital collections, and c) that create a preservation system that depends on a single centralized collection with a single funding source.

While these choices seemed appropriate 15 years ago, much has changed over the years. Many libraries are developing institutional repositories and other digital collections. In a survey in August of 2005, 85% of responding FDLP libraries expressed “high” or “very high” interest in being able to “pull” content from GPO and 65% were equally interested in GPO “pushing” digital content to FDLP libraries. In the current survey of Regionals, 52% expressed a willingness to receive digital files on deposit. Commercial and open source software for managing digital collections is now widely available. As we look at new models and roles for FDLP libraries, we need to consider true digital deposit as a viable and important option. We need to look beyond the now-old model of relying solely on GPO having primary responsibility for ensuring content and permanent public access.

Changing Title 44: Please Not Yet

I’ve been following the discussion on the GPO regionals report and especially the back and forth on whether to push for revising Title 44. I posted a response to the godort list that I’d like to share here:

I really didn’t want to write about the Regionals Report until I had a chance to actually read through the 100 plus pages. But with the recent GODORT discussion about changing Title 44, I feel like I need to chip in on this one issue.

I am in total agreement with Stephen Hayes, who said, “DO NOT GO THERE. DON’T OPEN THAT PANDORA’S BOX. DO NOT TRY AND REVISE TITLE 44 UNLESS YOU WANT TO LOSE WHAT WE ALREADY HAVE.”

This is not the time to press for changes to Title 44. I say this as someone who feels that Title 44 could use some major changes — starting off with eliminating the Sales program and creating a permanent endowment fund for GPO operations, especially cataloging, documents distribution and building on FDSys to create geographically dispersed, local electronic collections.

But I think we have a lot of educational work ahead of us AND a political culture to change. Both parties in Congress have shown themselves (as a group) to be:

– Largely ignorant about technological/internet issues.
– Lukewarm to hostile about Net Neutrality. – If we don’t have Net Neutrality, any all e-docs program will die an inglorious death.
– Sympathetic to privatization of government information products.
– Too eager to support copyright absolutists by passing perpetual copyright on the installment plan.
– Believe that libraries are on their way out because “Everything is on the Internet”
– Unwilling to free their own stuff (CRS reports, etc)

While there are individual Members of Congress who don’t fit the stereotypes above, I think the above statements are a pretty fair characterization of Congress as a whole, no matter which party has power. In this climate, I think that reopening Title 44 will likely lead to more privatization, more wholesale going digital regardless of supporting infrastructure and possible cost-recovery mandates.

One thing I think it is important to do is for GODORT and individual depository libraries to ramp up education and outreach to Congress and the general public. We need to get awareness of the uniqueness of our collections, free government databases and librarian expertise into the thinking of policymakers and constitutents alike. We should try running with GPO’s “Easy as FDL” campaign for awhile. Then when we’ve helped people to understand that society benefits from free, unrestricted (mostly) access to information and from having experts in using that information, then it may be time to teach them about how much better it could be if we could have some changes to Title 44.

Trying to make changes to Title 44 before we’ve established our importance in the public mind and in the minds of policymakers seems like a mistake to me. Changes will be made that will benefit the interests of people who have established themselves as important parts of society.

Just my $0.02. Now I’ll do my best to actually read the regionals report. It’s so sad that we can’t all be fully informed about everything, even within our own field.

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