[UPDATE 3/21/2018: The CHA’s business meeting has been postponed to Thursday, April 12, 2018 at 11:00 am eastern. JRJ]
On March 15th, a bill to “modernize” the Federal Depository Library Program (FDLP) was finally introduced. There is good news and bad news.
• H.R.5305 – FDLP Modernization Act of 2018
The good news is that the bill does provide much-needed improvement of the current law in the areas of privacy, preservation, and free access to government information. It also has very strong language that attempts to address the problem of fugitive documents (those documents that are within scope of the FDLP but do not make it into the program. For more on this issue, see “‘Issued for Gratuitous Distribution’ The History of Fugitive Documents and the FDLP”). It even allows digital deposit into Federal Depository Libraries (FDLs).
The bad news is, first, that the improvements noted above do not go far enough. They have loopholes that could easily make those good features little more than halfway solutions or empty promises. Second, (and this is a fatal flaw in the digital age) the bill not only fails to create a digital FDLP, it actually writes that failure into law.
Small changes to the text of the bill can correct most of these problems. But to get those changes into the bill, librarians will have to let Congress (and their lobbyists in the ALA Washington Office, ARL and AALL!) know that they want them. These improvements are essential because this law will affect both the free access to and the preservation of government information for the coming decades.
Loopholes
There are three loopholes that, together, create the fatal flaw of the bill.
- Fugitives
- Agency Websites
- A Digital FDLP
1) Fugitives. The biggest challenge to long-term free public access to government information is the simple fact that most born-digital information produced by executive agencies is not being deposited with the Government Publishing Office (GPO). These IDPs ("Information Dissemination Products") are "fugitive" — neither GPO nor FDLs provide free access to these IDPs or preserve them. The drafters of the bill clearly recognize this and have devoted almost two thousand words in a ten thousand word bill to addressing it. (See Sections 1722-1724 of "Subchapter B — National Collection Of Information Dissemination Products"). These sections require executive agencies to give GPO copies their IDPs and associated metadata.
These provisions are detailed and thorough and welcome. But are they enforceable? This is a serious question because agencies have refused to comply with similar requirements quite effectively for the last 35 years.1
In our view, it is likely that such requirements will be challenged by the executive branch and it is not at all clear that they will survive court challenges. We hope they do survive, but if the bill has no alternative in place to deal with a successful court challenge, these provisions will be nothing more than wishful thinking. And fugitives are too big of an issue to leave to wishful thinking.
2) Agency Websites. Although the bill requires agencies to furnish GPO with copies of all its digital IDPs, it then exempts content on agency websites from that requirement until information is withdrawn from the website. In a "special rule" (Sec. 1724(b)1), the bill simply requires agencies to provide GPO with metadata so that GPO can link to the content on the agency website. When the agency withdraws something from its website, a separate procedure (Sec. 1722(c)) requires the agency to notify GPO "immediately." GPO must then post a notice in the Federal Register about the removal within ten days. Although the bill does not say so, it seems to imply that GPO would then provide access to the removed content in its own online repository.
The bill apparently envisions GPO as being the archive for withdrawn agency content. That in itself is not a bad idea, but does this implementation seem practical? Do we really think that agencies will notify GPO every time they modify a web page or move or remove a document on their website? Is this the way modern websites are managed? Does it seem likely that agencies will carefully send copies of withdrawn or modified website content to GPO after they have modified or withdrawn it? We think that this provision is not likely to work in practice even if it survives judicial challenges. It would, we think, be more practical to require agencies to deposit content with GPO upon creation. There is still the question of compliance, but at least compliance would be easier for most digital content.
3) A digital FDLP. The third loophole is the absence of a digital Federal Depository Library Program (FDLP). The sections of the bill that define FDLs (Sec 1741, 1742, 1744, 1745) carefully and thoroughly write into law the out-of-date policies that were developed 35 years ago2. Those policies explicitly limit the responsibilities of FDLs to so-called "tangible" products (e.g., print). The only digital responsibility of FDLs is to provide "access" to GPO’s catalog and GPO’s repository. We don’t want to diminish the essential importance of that job. Libraries are still the only access point for many people. But, since, the bill does not define any other digital role for FDLs, it essentially limits the role of FDLs to patching the digital divide since the "access" that FDLs have (with the exception of a few agency fee-for-service programs) is the same as the public at large — and every library in the world — already have.
The bill does provide a single digital-FDLP feature. Section 1743 allows "optional digital deposit" of IDPs from GPO into FDLs. Even this slim, "optional" provision (which is isolated from the responsibilities of FDLs in a section on "Services available for depository libraries") is further limited by qualifying language ("unless impracticable") and is subject to unspecified regulations that GPO can create. (It is worth noting that GPO has long opposed and prevented digital deposit through its policies. When it did ask a question about digital deposit in its 2007 biennial survey, it implied that it would only make "Access Derivatives (PDF files)" available for digital deposit.) The isolation of this provision outside of the defined roles of FDLs, along with the further limitations imposed on it, results in a bill that defines a print-only future for FDLs and no vision of a digital role for FDLs.
By failing to define a digital role for FDLs the bill puts all defined responsibility for digital preservation and access on GPO. This is a fatal flaw because, if the other two loopholes fail to adequately capture the great bulk of born-digital government information, GPO will need its FDL partners to fill in the gaps.
The 21st Century Digital FDLP
Fortunately, small changes in wording to the existing bill can simply change the responsibility of FDLs from tangible-only and "access" only to format-neutral. Such a change would mirror language already used repeatedly in the bill (i.e. "regardless of the form or format"). It would allow FDLs to be flexible in their responses to changes in production and distribution of government information in the future, too. It would not favor paper over digital or digital over paper, but allow FDLs (not GPO) to determine the most appropriate format and composition of their own collections. This would also encourage FDLs to develop digital services for their digital collections — services that would complement, not replace, those of GPO.
It’s not too late to make this bill even better. The Committee on House Administration will be holding a mark-up meeting for the bill on Wednesday March 21 at 10:30am (yes tomorrow!) (UPDATED meeting on April 12 @ 11am). Contact the committee or show up for the meeting if you’re in DC. Also, ALA, ARL and AALL have all come out publicly in support of this bill, so they should want to make it even better. So contact Gavin Baker in ALA’s Washington Office (gbaker@alawash.org) and Emily Feltren from AALL (efeltren@aall.org) and tell them to work to improve the bill to truly modernize the FDLP.
Authors:
James A. Jacobs
James R. Jacobs
Footnotes
- Petersen, R. Eric. 2017. Statement before the Hearing on “Transforming GPO for the 21st Century and Beyond: Part 4” (October 11, 2017) U.S. House of Representatives, Committee on House Administration. Congressional Research Service testimony 7-5700. Pages 3-4; and U.S. Government Publishing Office. 2016. Keeping America Informed: The U.S. Government Publishing Office, A Legacy of Service to the Nation, 1861-2016. Revised edition, 2016. Washington, DC : United States Government Publishing Office, 2016. [ Pages 120, 125, 132] ↵
- See, for example: Depositing objects not information and Review of 2016 in anticipation of 2017. ↵
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Because of today’s snowstorm in DC, markup is rescheduled for April 12– already reflected in the document link.
We need a digital deposit depository library spelled out in clear terms. It has been a long time since the 1962 bill and it will probably be a long time before the next bill after this one so we need a bill for the future not the past.
I wholeheartedly agree Bernadine. Making digital deposit “optional” as the current bill does, sort of puts it on the outside of the FDLP. My hope would be that GPO would write an SOD that would connect digital deposit to the new “preservation library” designation. Luckily the bill doesn’t preclude GPO from doing that or the FDLP community from requesting that. Onward!