Strengthening Title 44 part 1: Modernize definition of “publications.”

Modernizing the FDLP

We recently made several recommendations for strengthening Title 44 of the U.S. Code. In a new series of posts, we will explain the reasoning behind each of those recommendations.

Our first recommendation suggests how a very simple change to Title 44 would modernize the FDLP for the digital age and explicitly broaden its scope beyond paper "publications."

Recommendation

Modernize definition of “publications.”

Change the definition in §1901 from “Government publication” to “public information” as defined in 44 U.S. Code §3502 (12). Sample wording: “‘Government publication’ as used in this chapter, includes all ‘public information’ (44 USC 3502) which means any information, regardless of form or format, that an agency discloses, disseminates, or makes available to the public.” Include this same wording in §4101. Sample wording: “provide a system of online access to digital ‘public information’ (44 USC 3502).”

Current Law

Title 44 §1901 currently defines the term "government publication”"

“Government publication” as used in this chapter, means informational matter which is published as an individual document at Government expense, or as required by law.”

This definition was useful in defining the scope of the FDLP in the print age and useful when Congress wanted to require "publication" of government information. But, in the digital age, both uses are out of date.

Analysis

The U.S.Code and the Office of Management and Budget define different categories of government information. Perhaps most familiar to government information specialists are the categories of "records" and "publications." But these are just two of six categories — each one narrower than the one above it. The six categories are defined in OMB Circular A-130 (pp. 26‑37).

• Information
• Federal Information
• Records
• Public Information
• Information dissemination product
• Government Publication

We suggest that the most appropriate definition to use in §1901 is "Public Information," which is defined in Chapter 35 of Title 44:

The term "public information" means any information, regardless of form or format, that an agency discloses, disseminates, or makes available to the public.

This definition (which includes information that is disclosed, disseminated or made available to the public) is broader than “information dissemination product” (which only includes information that is “disseminated”) and broader than “government publication” (which only includes information that is “published as an individual document”). It is narrower than "records."

Using "Public Information" instead of "government publication" in §1901, would broaden the scope of FDLP. Once an agency has disclosed, disseminated, or made information available to the public, it would be in the purview of FDLP.

This definition is appropriate in the digital age for two reasons. First, it updates the outdated limitation of "published as an individual document," which was precise for the print age, but is imprecise and limiting in the digital age of dynamic web pages, e-government services, multi-part PDFs, audio-video presentations, databases, etc. Second, it encompasses all "Federal Information" that an agency has made public — regardless of the form, format, circumstances, or methods of disclosure or dissemination.

Effects

Changing §1901 to cover all "public information" instead of just "government publications" would have several positive effects:

• It would make "Records" released under FOIA disclosures subject to permanent preservation and access in the FDLP.
• It would give GPO (or even individual FDLP libraries) a legal mandate to gather, harvest, receive, or otherwise ingest any federal government information that agencies put on the web.
• It would oblige OMB to update Circular A-130 “Management of Federal Information Resources” to match this definition. Circular A-130 already says that agencies have a responsibility to provide information to the public and that they can do so by making “government publications” available to depository libraries through GPO regardless of format pursuant to 44 U.S.C. Chapter 19. The new definition would provide OMB an opportunity to create a requirement for agencies to have Information Management Plans and to suggest they can fulfill their responsibility for preservation by deposit of their public information with GPO and FDLP libraries.
• Perhaps most importantly, it would broaden the definition sufficiently to include data and databases that contain public information but are only "disseminated" through e-government services (such as dynamic web pages). This would solve the problem of hard-to harvest websites by getting raw data suitable for preservation, reuse, and repurposing into FDLP.
• It would broaden the responsibility of the FDLP and make it easier for GPO and FDLP libraries to meet those responsibilities jointly through the existing, long-established, legally-mandated partnerships of Chapter 19.

Endnotes

• Jacobs, James A. and James R. Jacobs. 2015. FGI submits OMB A-130 comments Free Government Information (November 19, 2015). ↵
• Jacobs, James A. and James R. Jacobs. 2017. This is not a drill. The future of Title 44 and the depository library program hang in the balance. Free Government Information (July 27, 2017). ↵
• U.S. Office of Management and Budget. 2016. Circular A-130, Managing Federal Information as a Strategic Resource. (7/28/2016). ↵

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

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