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:

• White House Threatens To Veto House E-Mail Storage Bill, By Dan Friedman, CongressDaily, Jul 9, 2008 (subscription required, but freely available here).

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.

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.

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.