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Here we go again: GPO wants to change Title 44

By in Library, post on .

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

CC BY-NC-SA 4.0 This work is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.

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