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Reading between the tea leaves: more about revising Title 44

More about revising Title 44

We learned a bit more about GPO’s intentions with regard to revising Title 44 when GPO Director Davita Vance-Cooks testified at a Hearing of the Committee on House Administration on July 18, 2017.


Hearing, July 18, 2017

In June, Vance-Cooks asked the Depository Library Council (DLC) to make recommendations for changes to Chapter 19 of Title 44 of the U.S. Code. As we wrote earlier, GPO’s announcement was troubling because it was so vague and because it opens up the law to changes that could erode FDLP and free public access to government information.

Because it appears that either GPO or the Committee on House Administration or both are committed to changing Title 44, we have already suggested changes that would conform to Principles of Free Public Access in the Digital Age.

Today we report on the July 18 hearing and present our analysis of it.

The House Committee Hearing

The hearing1 of the Committee on House Administration (CHA) provides some clues to what GPO may want from modifying Title 44 — any update of the law, according to Vance-Cooks “must preserve the substantive provisions of the law that enables GPO to effectively carry out its mission today, while addressing the need to revise provisions that are no longer necessary for the 21st century.” But neither the written statement nor the oral testimony provide an unambiguous indication of what GPO wants from changing Title 44.

There are, however, four things that are clear.

  1. GPO wants a “careful and thoughtful evaluation of all chapters of Title 44″, not just Chapter 19.
  2. CHA also wants to pursue changes to Title 44. Committee Chair Gregg Harper (R-MS-03) said that GPO’s fee-based “business model” of providing products and services to government agencies has been “hindered by outdated statutes.” More importantly, the committee has hired former Public Printer Robert C. Tapella to lead the committee’s review of Title 44
  3. GPO wants to change the statutory definition of “publication” so that it is “inclusive of digital formats.”
  4. GPO would like the authority to make grants to FDLP libraries to support digital initiatives.

Analysis

I. Pandora’s Box and What Congress Wants

As we described in our previous post, and have mentioned here before (Cornwall), as a matter of simple, political practicality, it is unwise to open the door to revising Title 44, unless you have one or more champions in Congress to shepherd through the legislative process a clear consensus of what needs to be changed and why. (Baish).

Rather than introduce a champion for long-term free public access to government information, the hearing revealed a committee mostly concerned with the fee-based services, workforce and finances of GPO. Republican committee members asked questions about how much it costs to publish the Congressional Record, “microcharges,” the costs of the labor union, operational efficiences, cost accounting, time-motion studies, staff salaries compared to private sector, and if GPO is really a “publisher” since it does not do what publishers do (edit, fact-check, assign titles, edit for style, etc). Vance-Cooks responded to this line of questioning by saying that changes to Title 44 could help reduce costs and improve efficiency of its fee-based services.

Neither the Republican nor Democratic members of the committee mentioned any changes to Title 44 that would affect the FDLP.

This sounds like there is no FDLP champion on the committee. The committee seems interested in saving money and reducing costs and fees. GPO is interested in giving money away and managing FDLP differently. This is not a promising way to open the Pandora’s box of changing the U.S. Code.

II. Grants to FDLP Libraries

Providing grants to to FDLP libraries for digital initiatives sounds, on its face, like a good idea. It could be one small step forward for the government actively supporting FDLP libraries. But, as is always the case with legislation, the devil is in the details. We have several concerns.

  1. GPO would like to have the authority to provide such grants. If we understood it correctly, the funds for such grants would be from unexpended balances from prior year appropriations. These balances come from “savings from reduced printing and distribution costs.” GPO already uses such savings to pay for the establishment and operation of its digital information dissemination operations (Budget Justification, FY 2018).

    It is not clear that there will always be such savings, particularly if GPO is able to reduce its funding requests by making changes to Title 44 that will save it from having to ask for funds to do unnecessary printing. As Bernadine Abbott Hoduski pointed out recently, direct grants can be done initially by the appropriations committees approving it for a year without changing Title 44. If grants are a good idea, shouldn’t they be appropriated directly?

  2. Would grants create two categories of FDLP libraries: those with grants and those without? If so, would this lead to weakening the program as a whole instead of strengthening it?

  3. Would libraries come to rely on these grants? If so, would it make libraries vulnerable to federal budget shortfalls? One of the major weaknesses of GPO’s digital strategy is that both short-term and long-term access to “online” documents in GPO’s care are vulnerable to budget shortfalls and to changes in Congressional priorities. (Think this could not happen? Don’t forget that The Office of Technology Assessment (OTA) was created by Congress in 1972 (2 USC 472), but Congress simply stopped funding it in 1995.) Making FDLP libraries equally dependent on Congressianal priorities would not strengthen the FDLP.

We believe the government information community should ask GPO to address such issues directly before supporting the idea in its current vague form.

III. Redefining “Publications”

In her written testimony, Vance-Cooks said:

[T]he statutory definition of publication,’ while amenable to interpretation as inclusive of digital formats, could possibly be strengthened by making that language explicit.’

The significance of the defintion of “government publication,” as defined in §1901, is that its meaning defines the scope of the FDLP Eleven of the sixteen sections of Chapter 19 rely on this definition. It defines availability, distribution, the Item List, designation of depository libraries, requirements of depository libraries, free use of government information, and Regionals.2

GPO’s policies do not reflect Vance-Cooks’ description of the law as being amenable to including digital documents. Its policies do the opposite of that. Two sections of Chapter 19 (§1904 and §1905) say that government publications selected from lists prepared by the Superintendent of Documents “shall be distributed to depository libraries.” But GPO’s SOD 301 policy explicitly excludes what it calls “online” information from distribution. And GPO has used this exclusion to undermine the very concept of a “deposit” with its Orwellian definition of an “online depository library” as a library-into-which-nothing-is-deposited (GPO, 2014).

But Vance-Cooks is correct in saying that the law is amenable to different policies. In fact, it is clear that GPO could — today — choose to interpret the current law as including digital formats. Again, Bernadine Abbott Hoduski and her long experience with FDLP is helpful here. She wrote recently that the Joint Committee on Printing interpreted §1911, which defines free use and retention, to include digital products and publications of all kinds. As she wrote, “It did not take a law, it took a decision by the oversight committee to interpret the law to reflect the spirit of the law which is to keep the American people informed.” And GPO is technically capable of digital deposit. Indeed, GPO currently facilitates the deposit of digital files to thirty-seven libraries that are part of the “LOCKSS USDOCS” network.

But GPO chose, way back in its 1996 Study, to stop depositing government publications that were digital and arrogate solely to itself the responsibilities of preservation and access of digital government information. That report even suggested revising Title 44 to change the name of “depository libraries” to “program libraries.” The suggestion was that “program libraries” would maintain “tangible Government information products” and offer “assistance in locating and using Government information” and provides the “capability” for accessing “Government electronic information services.” Sound familiar?

GPO has not deviated from this out-of-date strategy. It is therefore likely that GPO does not want to update its policy to reflect twenty years of progress in digital libraries and the evolution of digital discovery, access, and use. It appears that GPO wants to change the law to reflect GPO’s aging policies rather than modernize those policies. One clue that this is the case is Vance-Cooks’ written testimony. In it, the only effects of a redefinition of “publications” that she mentions are those that will allow libraries to discard their paper collections.

From the written testimony:

  • “Digital-only depository libraries…obviate the need for depository libraries to maintain collections of at least 10,000 print volumes” and Section 1904, one of the sections that require deposit of government publications, should be changed “to provide more flexibility” to selective depository libraries.
  • Chapter 19 should be changed to allow FDLP libraries to rely on the “documents on GPO’s websites” “instead of print collections.”
  • Changes to Chapter 19 should “improve” the “state-based structure of the depository system, anchored by regional libraries which support statewide systems of selective depositories.”

GPO’s current Budget Justification seems to provide another clue that GPO wishes to further exclude digital documents from the scope of FDLP libraries. Although the text is, once again, vague, it seems to imply as much. It asks for funds:

“…to investigate, develop, and replace legacy methods for the selection and distribution of digital and tangible materials for Federal depository libraries.” [emphasis added]

As we have pointed out before, GPO uses the adjective “legacy” to mean “unwanted.”

What else does GPO want?

The written testimony provides one more clue to what GPO wants from revisions of Title 44:

“…changes to chapter 19 need to also explore how to best secure the value of the print collections that have been distributed to depository libraries for more than 150 years….”

GPO worked tirelessly for nearly ten years attempting to shrink the number of Regionals (remember the Kansas-Nebraska shared regional debacle and the fight over Michigan and Minnesota regionals? — Jacobs and Kelly) and allow Regionals to discard their paper collections. That effort culminated in 2015 in JCP’s approval of GPO’s Discard policy. Now, nearly two years later, Regionals have not yet been able to discard a single volume. It seems clear from the written testimony and the language in the Budget Justification that GPO is still determined to get more paper documents discarded and is looking for new ways to do so. Since the new policy has not yet accomplished that goal, GPO evidently wants to change the law to get rid of retention requirements.

Conclusions

GPO has not yet given a clear, unambiguous indication of what changes it wants to Title 44. Our analysis is largely a reading-between-the-lines of vague GPO statements.

It appears that GPO is interested in revising Title 44 in ways that will set into law the old policies that GPO devised more than twenty years ago. These policies have weakened the Federal Depository Library Program and individual FDLP libraries (Jacobs and Jacobs 2016). They have made it difficult to retain libraries in the program. They deprecate FDLP partners. They put the entire responsibility of preservation of all government information for the nation soley on one tiny, under-funded government agency.

In spite of GPO’s long-time exclusion of digital documents from the depository system, a significant number of FDLP libraries want to include them. Responses to biennial survey questions between 2005 and 2015 reveal hundreds of FDLP libraries that are interested in digital deposit and between 100 and 200 libraries that are already downloading digital documents and hosting them locally. These numbers are remarkable because they demonstrate the progressive initiative of FDLP libraries while GPO policies are stuck in the past.

But the most important negative effect of these policies is on users. The policies force all users into a single silo of government information, a one-size-only for browsing, searching, discovery, access, and use. They treat all user communities with the same bland “access.” Instead of treating FDLP libraries as partners and providing them with the flexibility to address the needs of their user communities, these policies actually prevent libraries from building robust digital collections. They prevent the building of a Collaborative FDLP that would put users first. They put long-term access to digital government information at risk by replacing a distributed system with a centralized system.

GPO might yet surprise us when it reveals details of its intentions. We hope so. GPO has done a yeoman’s job with FDsys and now govinfo.gov. But GPO cannot ensure long-term access by itself. It needs partners. It need not recruit new partners; it already has more than 1,000. We hope it will use this opportunity to expand the scope of FDLP so that FDLP libraries can provide the help GPO needs. That is the way Title 44 is written now. It would be a mistake to change it.

We have made a series of suggestions in a separate post here.


Footnote

  1. The Hearing was the second of two. The first was held on May 17, 2017.
  2. Changing the definition of government publications in Title 44 is also more complex than GPO has yet acknowledged in public statements. Government information is defined in two sections of Chapter 19 and also in Chapters 29, 33, and 35.

Endnotes

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

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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