As we noted last week, there is another effort underway to update Title 44 and “modernize” the Federal Depository Library Program (FDLP). The Government Publishing Office (GPO) has put together a proposal for Legislative Revisions to Title 44 U.S.C., Chapter 19 and have asked for comments by MARCH 5, 2021.
As always, we approach changes to Title 44 and GPO policies with the user in mind. We ask of every change, “How will this affect people who want and need government information?” With that in mind, here are our comments on GPO’s proposed revisions.
While there is a lot that is good about GPO’s proposal, we believe that there are also some significant problems and gaps. Below, we outline these. Separately, we have compiled a revision of GPO’s proposal with specific word changes that we recommend.
GPO’s proposal [download PDF link] writes several new requirements into law. These give GPO the legal authority to continue good policies and therefore protect those policies from being ignored or weakened by future administrations. (If you haven’t followed these issues, you may be surprised that these are not already in the law!) These changes strengthen the law and should be adopted:
These changes will…
- broaden the definition of government information to bring it in line with the rest of Title 44 and with OMB policy and explicitly include digital government information in Chapter 19’s purview.
- require GPO to provide long-term, free, public access to all government information in its online collection.
- require GPO to preserve all the government information in its control.
- require GPO to create cataloging and metadata for a newly defined “National Collection,” require GPO to “bring fugitive public information under bibliographic control,” and allow GPO to receive metadata records from others. 
Other proposed changes to Chapter 19 will, in our opinion, severely erode the role of the FDLP and its member libraries and thus weaken both preservation and access. Although these changes may seem to be small, bureaucratic policy changes, it is their effects that trouble us. In our opinion, these changes will make it harder to guarantee to users the long-term, free access they need.
These changes …
- remove requirements for FDLP libraries to have any depository holdings, of any format.
- remove requirements for even a minimum number of copies of government publications in the FDLP for preservation and access [by weakening the existing law and the already watered-down retention rules for Regionals]
- give GPO the legal authority to exclude digital information from deposit with FDLP libraries.
- write into law the model GPO developed over 25 years ago in which GPO took responsibility for preservation and access away from FDLP libraries.
The proposal is particularly disappointing in its failure to provide a vision for the future, and its failure to address existing problems with collection development, long-term preservation and access to government information. Indeed, the proposal seems rooted in the past.
The good parts of the current proposal, as noted above, fix gaps and problems in the legislation that added Chapter 41 to Title 44 and set up what has become govinfo.gov. Those changes go a long way in bringing the law up to date.
But most of the proposal focuses on instantiating into law the policies, procedures, and workflows that GPO developed almost thirty years ago. These policies essentially moved the responsibility for preservation and access from FDLP libraries to GPO itself. They prohibit GPO from depositing 99% of govinfo with depository libraries and thus prevent FDLP from sharing the burden of ensuring long-term free public access. Instead of supporting FDLP libraries and encouraging them to move into the digital age and giving them a strong partnership role, those policies relegated the role of FDLP libraries to little more than including old fashioned catalog records in OPACs, which was always a fatally flawed idea. Even those who believed that was justifiable in the 1990s must surely acknowledge that those policies are out of date in the digital library landscape of the twenty-first century.
We believe that changes to Title 44 should acknowledge current gaps in collections, preservation, and access, envision a future for digital government information that goes far beyond the current limited features of govinfo.gov, and empower FDLP libraries as full-fledged digital partners with GPO in meeting the wide variety of digital information needs of a very broad General Public.
The biggest current problem for long-term preservation of government information is the enormous gap between the amount of born-digital government information being produced by all three branches of the Federal government, and the amount of information that actually gets into the “National Collection.” This is the exponentially growing issue of “fugitive” documents that this proposal defines but doesn’t do much to alleviate (GPO and the community are currently discussing a new term as “fugitive” has negative connotations to slavery, so no doubt the term will be replaced in any future draft legislation).
Some of the things a revised Title 44 should address include:
- Filling Gaps in the National Collection. There is an enormous and growing amount of digital government information that is not in govinfo.gov and is not being collected, described, or preserved for long-term free public access (see “‘Issued for Gratuitous Distribution:’ The History of Fugitive Documents and the FDLP,” Against the Grain 29(6) December 2017/January 2018 for more on the issue of lost documents). GPO is legally and financially constrained from getting this information. It has recently changed its policy from at least advocating outreach to executive branch agencies to settling for automated harvesting of some of this content. This is neither complete nor adequate and it fails to ingest this material into GPO’s Trusted Digital Repository. Though the Supreme Court’s Chadha decision — which upheld the constitutional doctrine of separation of powers between the 3 branches of government — limits what GPO can do to require executive branch agencies to deposit their publications with GPO, the scope of the National Collection demands that GPO work with FDLP libraries on a wide range of options and partnerships to assure that “lost documents” from all 3 branches of government make their way into the National Collection. Title 44 could encourage FDLP members to identify and acquire digital government information and make such information available for GPO to ingest.
- More Users, More Uses. Title 44 should encourage and facilitate FDLP libraries to build their own digital collections and services. By providing digital deposit, GPO could enable and encourage FDLP libraries to build their own digital collections. Such collections could include information from sources unavailable to GPO (e.g., federal and state agencies, universities, NGOs, commercial publishers). Title 44 should broaden the definition of the communities that FDLP libraries serve, adding language that would encourage FDLP libraries to develop digital “Designated Communities” 1 that reach beyond institutional constituents and geographically-local communities. Together, these changes would enable FDLP libraries to develop digital services for their digital collections around subjects (e.g., economics, agriculture, water, civil rights), specific types of digital information (e.g., databases, PDFs, GIS), different kinds of use (e.g., reading single documents, fact-lookup, corpus analysis) for different designated communities. This would provide incentives for libraries to join and remain in the FDLP. But most importantly, this would enhance discovery, access, and use of government information for users — far beyond what GPO can do on its own.
- Beyond OPACs, Beyond “Documents”. Title 44 should include language that promotes the creation of metadata and creative ways of using that metadata beyond just library catalogs. We believe the future of digital libraries will hinge on libraries having, managing, and using metadata in ways that reach far beyond descriptions of individual “documents.”
- Beyond “access”. Title 44 should enable a future of government information that stretches beyond finding and “accessing” one document at a time, beyond knowing which agency has information relevant to a particular user or user community, and beyond reading to using and re-using rich government information in a variety of formats.
- Every use its format. Title 44 should acknowledge the continuing importance of paper to many users and for many uses and the limitation of existing incomplete and inaccurate digital “surrogates” of historical collections.2 It can do so by ensuring the ongoing importance of geographically accessible collections. Ranganathan’s famous five laws of library science said that every reader should have his book and every book its reader. Now, almost one hundred years later, we need to acknowledge that every format has its function, every use its format, every user their choice.
- Re-imagine Regionals. Title 44 should re-imagine the functioning of Regional depositories to include their historic role of regional preservation and access to a future of replicating digital collections to ensure their preservation and access online. The existing law requires Regionals to retain what they receive. We believe this role is still useful and necessary. Perhaps a revision of Title 44 could create a third category of depository library for receiving and retaining every digital “Information Dissemination Product”? (This is already happening to some extent with the lockss-usdocs program in which several regional depository libraries participate.)
In a separate PDF document we recommend specific changes to the text of GPO’s proposal. Below, we list for each section why we made those specific suggestions. (These comments are also contained within the PDF file after the suggestions.)
We invite you to compare our suggestions with GPO’s and ask how each will affect the people who use government information.
§ 1900 [NEW].
We add text that defines the purposes of the law and the programs and their relationships. We insert text clarifying that the collection is to be used not just "accessed."
We changed some text to conform to the existing OMB Circular A-130: “Managing Information as a Strategic Resource” definitions. We added OMB definitions of "Information dissemination product," "Information life cycle," "Open data," and "Records." We also added a definition of "The National Collection of U.S. Government Public Information." These changes should make the text in other sections of the proposal consistent and clearer. This should also help make the hierarchy of types of information clear and which are to be considered part of the Collection and which not (see below). We deleted references to "tangible" and "digital" information so that all Information Dissemination Products can be treated appropriately and to avoid applying a special second-class status to "tangible" products. (We believe that decisions about services and preservation should be made based on accuracy, completeness and functionality of the particular IDP, not whether or not it is "tangible.") We made other small changes to repeat the importance of "use" of (not just "access to") the collection
information -> federal information -> records -> public information -> information dissemination product -> government publication
We attempted to clarify the intended obligations of departments and agencies to guide OMB in Circular A-130 Managing Information as a Strategic Resource 5.e.2.d (Policy, Information Management and Access, Agencies, GPO; [p.15]).
GPO did not propose any changes to section 1904. We suggest changes to the existing wording of this section in order to update the outdated concept of an "Item List" for the digital age.
We add a Statement of Purpose for FDLP libraries. We drop language that allows GPO to treat information "made accessible" to depository libraries as if it was deposited. We change "housing" to "securely storing Information Dissemination Products" in order to cover both digital and non-digital IDPs.
We make no suggestions to section 1907.
We delete the terms "tangible" and "digital" so that every IDP can be treated appropriately to its format, function, usability, etc. We add language to expand the way FDLP libraries define their communities to allow them to serve communities beyond their geographically-local constituents.
We delete GPO’s proposal to allow Regional Depositories to delete their holdings.
We delete language that treats digital content in govinfo.gov as if it was held and managed by the FDLP.
§ 1917 [NEW].
We suggest minor changes to make this text consistent with the Definitions.
§ 1918 [NEW].
We add text to acknowledge the usability (not just "access") is an important purpose of The Collection. We delete text that refers to "tangible" information so that the law treats all IDPs equally. We add text to clarify and expand the concept of open, non-proprietary formats.
We believe that these changes will accomplish more for users than GPO can on its own. These changes will do this by building on the the existing partnerships among FDLP libraries and between GPO and FDLP libraries. They will expand our collective ability to broaden the scope of “The National Collection.” They will enable us to better meet the rapidly changing digital needs of the General Public, but also of the specialized needs of the growing number of communities of interest that discover, acquire, and use digital information in unique ways.
James A. Jacobs, University of California San Diego
James R. Jacobs, Stanford University
- “Designated Communities” is a term from the OAIS standard used for certifying Trusted Digital Repositories (TDR). The standard ties preservation of information to one or more Designated Communities which are defined as “An identified group of potential Consumers who should be able to understand a particular set of information.” To be trusted, a repository must insure that the information it stores is “understandable” by the Designated Community. When GPO obtained TDR Certification it specified its DC as being FDLP libraries and those who “are familiar with the organizations, documents, publications, and processes of the legislative, executive, and judicial branches of the United States Federal Government.” It did not even include the General Public. ↵
- See: “An alarmingly casual indifference to accuracy and authenticity.” What we know about digital surrogates. ↵
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While I agree with much of what you two have written, I disagree with this part: “§ 1905.
We add a Statement of Purpose for FDLP libraries. We drop language that allows GPO to treat information “made accessible” to depository libraries as if it was deposited.”
First, it is written that way because government documents/publications & information are deposited with the library. They are not the property of the library and never have been. They are the property of the people. You know that. The real problem is that GPO and the FDLP have never had a true process for taking the material back when a depository library is no longer able to fulfill its obligation to the people whether it be they close their doors to the public or are no long able to house the tangible product or the administration determines they no longer wish to be part of the program. The material is still on deposit, yet many administrations want to hold on to key materials and GPO does not have a place to house them not the wherewithal to enforce repossession. That is a major flaw of the program — my opinion.
Thanks for reading and your comment Aimee. We were not primarily concerned with withdrawal of physical items from libraries, but we felt that there was a lack of a strong statement of purpose specifically for FDLP libraries in GPO’s proposal. The text we added to 1905 made that statement overt and also tweaked language so that catalog records with links wouldn’t be the norm or only way for “depository” status, that all information regardless of physical or digital format would be treated equally, and that digital deposit would be better supported in the law going forward.
Thanks Aimee! You make an excellent point, but, as James notes above, the changes we suggest are intended to address a different issue.
The current law says publications requested by a depository will be “distributed to” depositories. GPO’s proposal would change the law from requiring SuDoc to *distribute* publications to allowing SuDoc to only make a digital publication “accessible” — the same access that every member of the public has to every publication in govinfo. That, in our opinion, weakens the law significantly! This is what we were trying to address with our suggested changes.
Current GPO *practice* and policies (but not Title 44) allow the SuDoc to “distribute” only a MARC record and no publication. We are making the radical suggestion that Depository Libraries should have publications (and IDPs) *deposited* with them for them to hold in their own collections.
Thank you James and Jim. My reading of this proposed language is the same, but I admit I am probably reading too much into it. I read the language to mean by “distribute” they will also make “accessible”. I realize that is Pollyannaish thinking, yet I like to think that despite what has happened and is going on presently in the federal government, the majority of people working do their job to the best of their ability. The majority of people do not want conflict and want government to work for them. They want simplified processes and built in protections and safeguards which includes for government information (IDPs). I see your points in making it explicit in the law. I have rarely seen laws with that much specificity get passed by any Congress.
Posted both items as links and notes on FB group, https://www.facebook.com/groups/ALAthinkTANK
Thanks for your work on this, important changes well-noted…
thanks for helping to get the word out Michael.