[Note: We wrote this analysis based on the text of the draft bill of December 1, 2017. Just before posting we received a new draft bill dated December 11, 2017. A quick comparison shows few significant changes between the two bills, but there are some improvements (we note one below.) We encourage you to suggest improvements directly to the CHA (see “Action” at the end of this post.]
We now have a draft bill (dated 12/11/2017) proposing revisions to Title 44 of the U.S. Code. It is, indeed, a draft with inconsistencies and some awkward and confusing language. Also, the marked up by the Committee on House Administration that was supposed to happen on Wednesday December 13, 2017 has now been postponed until some time in January, 2018. Nevertheless, the broad outlines of the intentions of the bill are clear. We provide below a first look at this draft bill, focusing on broad policies rather than detailed specifics.
A complete rewrite
The bill does not tweak the existing law, but throws it out and rewrites significant portions of the law. Specifically, it throws out chapters 1, 3, 5, 7, 9, 11, 13, 17, and 19 that define the Depository Library Program along with Congressional/Executive/Judicial printing and binding, the Joint Committee on Printing, the Government Publishing Office, and the sales program, and inserts in its place 3 giant chapters defining the “Government Printing Office” (yes, it changes the name back to "printing office"), “Implementation of Authorities,” and “No-fee public access to government information” (which includes the FDLP and GPO’s "online repository"). It also evidently drops chapter 41 that defines access to federal electronic information and sets up FDsys/govinfo.gov.
The bill instantiates into law GPO’s worst policies. It does improve provisions for long-term free access and digital preservation, but it does so inadequately and with explicit loopholes that make those provisions nearly worthless. The bill contains provisions that would be very useful if they were enforceable, but it removes the already almost non-existent enforcement in the current law. In short, it is a bad bill with some nice language thrown in to make it sound better than it is. A spoonful of sugar to make the medicine go down, as it were.
As we have suggested, there are four principles that, we believe, must be supported by any revision of Title 44.
Below we analyze the bill’s effect on those principles and the other weaknesses of the bill.
The bill provides a requirement for preservation of the digital collection that is missing in the current law, but the requirement is weak.
- While the current law does not require GPO to preserve anything in its online repository, the bill does. It even requires GPO to have “a program” of permanent retention of digital materials (§521(c)). This is a significant improvement in the law.
- The bill, however, has a huge loophole for digital preservation. The bill requires the Superintendent of Documents (SuDoc) to have policies for discarding content (§508) without specifying how content might qualify (or fail to qualify) for discarding. This gives GPO unrestricted permission to decide what to withdraw. The bill should have rules for retention at least as explicit as the rules for ingesting content (§502).
Preservation of the Historic Collection
While GPO currently provides few rules for preserving the paper Historic Collections, the bill is worse. It weakens existing rules and, by writing weak rules into law, it makes them harder to correct or change. The bill will make it easier to discard paper copies without providing accurate, complete digital copies. It weakens retention requirements and only requires retention of paper copies for preservation — not for access.
The bill overrides and weakens the current discard policy (SuDoc PPS 2016-3), which requires at least 4 preservation copies to be held by preservation partners distributed geographically. Instead, it will allow the SuDoc to determine an “appropriate number of copies” and how many libraries must hold those copies (§544). It reduces the number of Regionals to two libraries per census region (Northeast, South, Midwest, West). It adds a new designation of “preservation depository” and completely deletes the original role of Regionals. It specifically allows preservation copies to be stored “without regard to geographic restrictions” and changes the requirement of “geographic diversity” to a suggestion (§545).
The bill encourages digitizing and discarding paper documents (§506) without specifying any requirements for quality or completeness or accuracy or functionality of those digitizations. It will allow incomplete, inaccurate, damaged digital copies to be used in place of existing paper copies. [Just before posting this to FGI, we received a new version of the bill dated 12/11/2017. It does not have many changes, but there are a few good additions. In particular, §506 now includes this requirement: “shall verify that such IDPs are complete and unaltered.” This is a good change. It needs a definition of “unaltered” and would be better if it included “accuracy” and something about digital functionality. We hope for other changes and encourage you to suggest specific changes to improve the bill.]
This is, perhaps, the best part of the bill. While current law allows GPO to charge for access, the bill requires GPO to make its online repository available to the public “at no charge” (§521(a)).
The bill says that content in the Sales Program (“tangible” and digital) will be offered for inclusion in the FDLP (although the SuDoc will have to pay for it.)
The bill even requires that agencies that produce their own content must “ensure no-fee public access to the product” by furnishing a copy of the product to the SuDoc (§504).
- The bill fails to correct the problem in the current law that allows GPO to sell content that it provides for free (§361-363).
- The bill does not provide any way GPO can enforce the requirement for agencies to provide GPO with content.
The bill does not enhance existing law, but it is more explicit by specifying (§523) that GPO’s online repository — and FDLP libraries that choose to receive digital “Information dissemination products” (IDPs) via the optional digital deposit (§542) — must conform to existing law (the Privacy Act and §3501).
- As we have suggested, the bill could be improved by prohibiting GPO from using third-party web measurement and customization technologies.
GPO has given few clues as to what it wants from changing Title 44, but it did say it wanted “suggestions for modernizing the Federal Depository Library Program’s statutory authority.” As we have pointed out, the term “modernization” is very vague and can be used to camouflage bad policies. And that is exactly what this draft bill does.
The bill has three provisions that sound like modernization until you examine the whole bill.
- Scope: The bill changes the scope of GPO and FDLP from “government publication” to “Information dissemination product” (IDP) (§101, §109). This is an improvement because it broadens the current law (which only covers “individual documents”) to cover the way government actually publishes information today. It is broad enough to cover all digital public information including data and databases. Technically, it includes anything a government unit “disseminates to the public” but excludes information that the government “discloses” or “makes available” to the public (e.g. FOIA). We had recommended the term “public information” which would have encompassed both disseminated information AND disclosed information.
- Digital Deposit: The bill allows digital deposit optionally (§542(b)). Digital deposit is, in our opinion, essential to the modern FDLP. Since GPO has, for decades, refused to offer it even though FDLP libraries have repeatedly expressed interest in it. Its inclusion here is definitely noteworthy.
- Grants. The bill gives GPO authority to make grants to FDLP libraries (§547).
Out of context, those three provisions sound like modernization. But it is the context of the rest of the bill that will make them just nice ideas that will never amount to much rather than significant modernizations.
Changing the scope of the FDLP is essential to modernization, and the bill has a lot of text that shows really good intentions to get all IDPs (and metadata about websites) into FDLP and the national collection one way or another (e.g., §503 and §505). There are two problems with the bill, however:
- Pre-web model. Instead of modernizing FDLP, the bill instantiates into law a policy that is over twenty years old. That policy (“SOD 301“) is based on a model developed in the mid-1990s before the web and digital libraries developed. The bill moves the essence of that bad policy into law (§541). The policy (and now the bill) splits responsibility for digital and “tangible” government information. This model limits the effect of the new scope to GPO, leaving FDLP libraries with the old scope of individual (“tangible”) publications.
- No enforcement. The problem with this is that there is nothing in the bill to enforce compliance by agencies. GPO cannot force agencies to do anything. Indeed, there are existing laws and regulations already in place that say much the same thing as this bill does. (e.g., OMB Circular A-130 5(e)2(d) says that executive agencies have a responsibility to make government publications available to depository libraries. And Section 3511 of Title 44 requires agencies to have a Government Information Locator Service (GILS). The simple reason these things are not happening is that there is no enforcement of these rules. There is no reason to think that the new rules in this bill will be obeyed any more than the current rules. In fact, to the extent that the bill’s rules are more explicit and more thorough than existing rules, so they will be more likely to be ignored.
Just as we have experience of rules being ignored because of lack of enforcement, so we also have experience of strong enforcement. For years, the Joint Committee on Printing (JCP) was actively involved with GPO and the FDLP. The JCP had full time professional staff that actively monitored the GPO, FDLP and agencies’ compliance. It was JCP that directed GPO to make some of the most significant changes over the years. Among those: establishing an electronic cataloging program using ALA/LC rules, MARC format, and LC subject headings; getting GPO to produce the first Census Bureau CD-ROM; and getting the Serial Set produced with archival materials. Indeed, JCP was instrumental in one of the first recommendations to give electronic publications to depository libraries.
Instead of building on this experience, the bill simply eliminates the JCP. (The bill splits GPO oversight between the Committee on House Administration and the Senate Committee on Rules and Administration “acting jointly.”) This essentially puts all the responsibility onto GPO and experience shows that will not be effective. GPO has no authority (and no budgetary stick) over agencies. Without a strong Congressional voice actively working to enforce the deposit of executive/judicial IDPs with GPO, the bill is not an actual modernization of the scope of the FDLP. It is little more than a hope and a dream.
Even a quick reading of the bill reveals many problems with the digital deposit provision.
- Digital deposit is not integrated into the FDLP. It is a last minute add-on stuck in a section of the bill that (oddly) establishes a new class of “Federal Depository Libraries” that are neither Selectives nor Regionals and that need not be nominated by Congress (§542(a)). Everything else in this bill carefully, methodically separates IDPs into “online” (which are for GPO only) and “tangible” (which are for Selectives and Regionals only). This provision does not encourage or enable FDLP libraries to be full-fledge partners with GPO in the provision of preservation and access and service. Instead, it puts digital deposit off in the corner — like the card-table where the children sit at thanksgiving.
- Digital Deposit in this bill is separate from, not part of, FDLP deposit policies. Instead of integrating digital deposit into the mainstream of FDLP deposit, the bill isolates it from the existing selection processes. There are no selection or retention or collection or service requirements or procedures or policies for so-called “digital deposit.” It is even separated from the new class of “preservation” depositories.
- The bill restricts digital deposit to IDPs in a “suitable electronic form” without defining what that means. This allows GPO to restrict what it will deposit. In the past, GPO suggested it would only make “access derivatives” available. The bill does not even provide for the deposit of accompanying metadata. This wording does not treat FDLP libraries as partners, but as subordinates.
- The bill allows GPO to regulate digital deposit in unspecified ways. In another context, the qualification that IDPs will be made available “in accordance with regulations promulgated under this subchapter” could be read as boilerplate text making digital deposit part of all the other rules of the law. But in its context outside of the actual depository system, this qualification reads as giving GPO the ability to place any limitations it wishes on digital deposit. This context means that the law does not ensure selection of digital IDPs in a consistent and practical manner. It does not modernize deposit to enable libraries to build their own functional digital collections with robust digital services. It has no provisions for digital preservation. It is an afterthought with built-in loopholes that allows GPO to continue its antipathy to partnering with digital FDLP libraries.
- Digital Deposit can be easily dropped during markup or even after passage into law. Since the provision of digital deposit is not integrated into the rest of the law, and since it is not integrated as part of deposit into Selective and Regional depositories, it can be easily excised without affecting the rest of the bill.
Our reservations about this provision would not be as strong if GPO had ever indicated it supported digital deposit and wanted it integrated into Title 44. But GPO has given little indication of support for digital deposit.
Our quick reading of the bill reveals many problems with the grant provision (§547) This is a potentially important improvement over current law. But the grant authority does not come with any funding. We would of course be delighted if the bill included a lump sum of $10million to the revolving fund specifically to support grants for preservation and other FDLP activities. As it is now written, any grants will have to come from the revolving fund, meaning less money for other critical GPO functions. Alas, this is just another empty promise.
We believe modernizing Title 44 and the depository system should treat digital content and so-called “tangible” content equally. It should recognize the opportunities of the digital age for building robust distributed digital collections and services. It should make use of GPO’s more than one thousand designated depository library partners to enhance and increase what GPO can do on its own. A modern law would explicitly support collaboration so that it can be funded. It should enable FDLP libraries to work with GPO and each other as equal partners in providing preservation, access, and services for all government information regardless of format.
Unfortunately, the bill does none of that. Instead it puts the entire burden of digital preservation, digital access, and digital services on GPO alone. Worse, it explicitly relegates the digital role of FDLP libraries to one of an intermediary with responsibilities, but no authority. And, worse still, it limits the only true library function of FDLP libraries to handling the Historic Collections while simultaneously doing everything in its power to assure that those collections will be discarded.
We highly recommend that readers contact Chairman Harper and Ranking Member Brady, other members of the committee, your representatives, and various library organizations, let them know your thoughts and feedback on both the positives and negatives in the current draft bill, and give recommendations for how to make the draft even better. (the relevant staffer emails are firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com, and ALA Washington Office: firstname.lastname@example.org). We have one shot at this folks. We have to make it count to create a solid law which truly supports access to and preservation of government information.
James A. Jacobs, University of California San Diego
James R. Jacobs, Stanford University
Excerpts of Draft
§ 101. Establishment of Government Printing Office
There is hereby established the Government Printing Office (hereafter in this title referred to as the ‘GPO’) to carry out the following functions, in accordance with the requirements of this title:
(1) The production or procurement of information dissemination products (IDPs), regardless of form or format, including IDPs created for or transmitted through an electronic communications system or network.
§ 109 General definitions
(b) OTHER DEFINITIONS
(9) The term ‘information dissemination product’ or ‘IDP’ means any recorded information, regardless of physical form or characteristics, disseminated by an office of the Federal Government, or contractor thereof, to the public.
§ 503. Responsibility of offices of Government to furnish products to Superintendent of Documents
(a) REQUIREMENT TO FURNISH PRODUCTS.
(1) IN GENERAL.—If an office of the Federal government produces or procures an information dissemination product, regardless of form or format, the applicable official shall furnish the product to the Superintendent of Documents for inclusion in the national collection established and maintained under this subchapter at the applicable price described in paragraph (2), not later than the date on which the product is made available to the public.
(d) FAILURE TO FURNISH PRODUCT.
If an applicable official fails to furnish an IDP to the Superintendent of Documents under this section—
(1) the Superintendent is authorized to obtain the IDP; and
(2) the office of the applicable official shall reimburse the Superintendent for the costs incurred in obtaining and disseminating the IDP.
§ 505. Special requirements for electronic information dissemination products
(b) SPECIAL RULES FOR PRODUCTS MADE AVAILABLE ON WEBSITES OF ORIGINATING OFFICES.
(1) SHARING OF METADATA WITH PUBLIC PRINTER.—If an office of the Government makes an electronic information dissemination product of the office available to the public through the office’s website, the head of the office shall ensure that the Public Printer (acting through the Superintendent of Documents) has the appropriate metadata associated with the product to enable the Public Printer to provide a link to the product through the online repository under subchapter B.
(2) TREATMENT OF ONLINE FEE-FOR-SERVICE PROGRAMS. — If an office of the Government makes IDPs available to the public online under a fee-for-service program, the office shall ensure that the Superintendent of Documents has access to such services, at a cost no greater than the applicable price described in section 503(a)(2), so that the Superintendent may make such services available to Federal Depository Libraries under subchapter C.
- § 506. Cataloging, indexing, locator services, and digitization of information dissemination products
(1) IN GENERAL.—The Superintendent of Documents is authorized to digitize, to the greatest extent practicable, all information dissemination products created at any time, and to include such products in digitized form in the national collection under this subchapter.
- § 521. Establishment and operation of online repository for no-fee access to information dissemination products
(a) ONLINE REPOSITORY.
The Public Printer shall establish and operate a trustworthy information system and online repository through which members of the public may obtain, at no charge, information dissemination products which are included in the national collection established and maintained under subchapter A.
§ 521. Establishment and operation of online repository for no-fee access to information dissemination products
(c) PRESERVATION OF PRODUCTS.
The Public Printer shall ensure the preservation for permanent public access of information dissemination products included in the online repository through a program providing for the permanent retention of digital materials.
SUBCHAPTER C—FEDERAL DEPOSITORY LIBRARY PROGRAM
§ 541. No-fee access to products through Federal Depository Libraries
The Public Printer, acting through the Superintendent of Documents, shall operate a program under which, in accordance with this subchapter—
(1) the Superintendent of Documents shall designate libraries as Federal Depository Libraries, including Selective Depository Libraries, Regional Depository Libraries, and Preservation Depository Libraries;
(2) the Superintendent shall furnish, at no cost, to each library designated as a Federal Depository Library under this subchapter access to the national collection of information dissemination products under subchapter A, including—
(A) complete access to cataloging, indexing, and locator information services under section 506;
(B) complete access to the online repository under subchapter B; and
(C) such information dissemination products in tangible form as are provided for in this subchapter; and
(3) each such Federal Depository Library shall provide free access to the collection to members of the public.
§ 542. Requirements for Federal Depository Libraries
(a) MINIMUM REQUIREMENTS DESCRIBED.
Each library designated as a Federal Depository Library under this subchapter shall meet the following requirements:
(1) The library shall provide members of the public with no-fee access to all of the information dissemination products furnished to the library by the Superintendent of Documents under this chapter, in electronic format by providing internet access to the online repository under subchapter B and to cataloging, indexing, and locator services under section 506, and in any tangible format held under this subchapter.
(2) The library shall ensure that a member of the library’s staff who is knowledgeable about the use of the online repository is reasonably available to assist patrons with the use of the repository.
(3) The library shall meet such other additional requirements as the Superintendent may establish by regulations promulgated under this subchapter.
- § 542. Requirements for Federal Depository Libraries
(b) OPTIONAL DIGITAL DEPOSIT.
(1) IN GENERAL. — At the option of the Library, a Federal Depository Library may receive an electronic, digital deposit directly from the Superintendent of Documents of such information dissemination products as are available in suitable electronic form, in accordance with regulations promulgated under this subchapter.
- § 544. Regional Depository Libraries
(b) WITHDRAWAL OF COLLECTION OF TANGIBLE IDPS
A Regional Depository Library may withdraw from its collection of IDPs under this subchapter any of the tangible IDPs which were in its collection prior to the Library’s designation as a Regional Depository Library, but only if—
(1) the withdrawn IDP is available through the online repository under subchapter B; and
(2) the Superintendent of Documents has determined that an appropriate number of copies of such withdrawn IDPs remain available in a sufficient number of Federal Depository Libraries.
(d) (1) in establishing criteria for agreements between Regional Depository Libraries and Selective Depository Libraries (as described in paragraph (4) of subsection (a)), give preference to any consortia and similar collaborative efforts in effect between such Libraries, without regard to geographic restrictions;
(d) (3)to the greatest extent practicable, provide for the designation of at least 2 Regional Depository Libraries in each census region.
- § 545. Preservation Depository Libraries
The Superintendent shall carry out this section in accordance with regulations promulgated under this subchapter. Under such regulations, the Superintendent shall seek to designate Preservation Depository Libraries in a manner which promotes geographic diversity.
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