GAO/Thomson-West Contract Raises Questions

Thanks to an alert from a dedicated but shy reader, our attention has been focused on a story on boing-boing [1] titled Did the US gov't sell exclusive access to its legislative history to Thomson West? This story has links to documents relating to this deal requested by the redoubtable Carl Malamud. I took the time to read/skim through the contract documents and found this interesting section:

Taken from "Attachment A, Statement of Work" from the contract between Thomson West and GAO, posted at http://www.scribd.com/doc/2299358/Contract-Between-Thomson-West-and-GAO [2]

Background: Since its inception in 1921, the US Government Accountability Office has compiled 20,597 legislative histories of most public laws from 1915-1995. These histories, spanning the 64th-104th Congresses, are currently being used onsite in the GAO headquarters Law Library in paper or microfiche format by GAO staff. On rare occasions other federal government employees are allowed onsite access to the paper or microfiche copies of these histories. Because of its historical and research value the legislative history collection shall be digitized to preserve the integrity of the files and improve the searchability of this valuable information resource.

Two years ago, GAO began a pilot project to convert a small number of GAO legislative histories from paper and microfiche formats to digital format. Since then 243 histories have been digitized using in-house resources and will be made accessible to GAO staff only through a web-based database on the GAO Intranet. The 243 histories consisting of 1,214,438 pages were randomly selected and include some of the largest histories in the collection. These histories shall also be re-scanned as part of this digitization contract.

This sounds like a major goldmine of information that really hasn't been shared with other parts of the government, let alone the public. It also sounds like GAO tried to do some of this work on its own but found it unviable. So left to itself, the information wouldn't contained in the paper files wouldn't be available to anybody. So I'm not surprised it went looking for a partner. But I am surprised and concerned that they went with a commercial partner when the GAO office is within driving distance of a number of major universities and when public-spirited organizations like the Internet Archive and Public Resource might have been happy to come up with a solution to provide this taxpayer-funded information at zero cost to the taxpayers and either zero or minimal costs to GAO. Conceivably there might have been some way for the Government Printing Office to incorporate this into GPO Access, although that certainly would have been at some cost to GAO unless Congress was willing to make an appropriation for this purpose. But any Congress that claims to be committed to strong public access should be willing.

Were alternatives to in-house digitization or wholesale privatization pursued? If not, why not?

Long time readers of FGI know that most government information is considered public domain and also subject to Freedom of Information Act requests. So what's to stop Carl, Internet Archive, or some other public minded group from exposing this rich trove of legislative histories to the public which were taxpayer funded to begin with? According to the GAO, plenty:

Taken from "Attachment A, Statement of Work" from the contract between Thomson West and GAO, posted at http://www.scribd.com/doc/2299358/Contract-Between-Thomson-West-and-GAO [2]

FOIA Requirements: While GAO is not subject to the Freedom of Information Act (FOIA), GAO has regulations (4 CFR Part 81) that follow the spirit of FOIA. The paper or microfiche copies of the legislative histories (and possibly the PDF copies of the "GAO Materials" section) would be available for public inspection and copying. However, under GAO's public disclosure regulations, GAO charges a per page copy fee. Accordingly, any extensive copying would be expensive and the quality of the copies, for many of the histories would be poor.

I assume this was put into the contract to assure Thomson-West their investment would be secure from public-access zealots who have the idea that the American people should only be charged once instead of twice for government information. But the paragraph raises two important questions that I hope someone in Congress will ask GAO:

1) On what rational basis would you charge a per-page fee on the 1,214,438 pages that have already been digitized? Running a backup tape isn't the same as hand copying files. GAO should be directed to immediately release that database at zero cost unless they can carefully and believably document actual copying expenses including staff time. But a per page copy for PDF files isn't credible.

2) When GAO says "quality of the copies, for many of the histories would be poor", are they saying that the quality of copies would be poor just for the public or for Thomson-West as well? The first reading suggests a deliberate effort to sabotage no-fee public access, while the second reading suggests that Thomson-West customers will be paying a high price for lousy duplication. Neither option seems particularly fair.

I think I speak for all of us at FGI when I say that while digitization for greater access is a laudable goal, wholesale privatization without a careful, public examination of other, more citizen-friendly, alternatives is not acceptable. If you agree, please ask your Members of Congress to direct GAO to take a second look at this contract and facilitate no-fee access to this valuable set of legal materials.