This post, all earlier postings in this series, and my “not a lawyer” disclaimer can be found at http://freegovinfo.info/title44 or through our library under Nonlawyer’s Journey through Title 44.
Now that you have discovered that I am not infallible, which I hope you realized before now from the weekly disclaimer, let us turn to the next section of the Sales program law, Sec. 1702. Superintendent of Documents; sale of documents
TITLE 44–PUBLIC PRINTING AND DOCUMENTS
CHAPTER 17–DISTRIBUTION AND SALE OF PUBLIC DOCUMENTS
Sec. 1702. Superintendent of Documents; sale of documents
The Public Printer shall appoint a competent person to act as Superintendent of Documents who shall be under the control of the Public Printer.
When an officer of the Government having in his charge documents published for sale desires to be relieved of them, he may turn them over to the Superintendent of Documents, who shall receive and sell them under this section. Moneys received from the sale of documents shall be returned to the Public Printer on the first day of each month and be covered into the Treasury monthly.
The Superintendent of Documents shall also report monthly to the Public Printer the number of documents received by him and the disposition made of them. He shall have general supervision of the distribution of all public documents, and to his custody shall be committed all documents subject to distribution, excepting those printed for the special official use of the executive departments, which shall be delivered to the departments, and those printed for the use of the two Houses of Congress, which shall be delivered to the Senate Service Department and House of Representatives Publications Distribution Service and distributed or delivered ready for distribution to Members upon their order by the superintendents of the Senate Service Department and House Publications Distribution Service, respectively.
(Pub. L. 90-620, Oct. 22, 1968, 82 Stat. 1279.)
Historical and Revision Notes
Based on 44 U.S. Code, 1964 ed., Secs. 71, 73 (part) (Jan. 12, 1895, ch. 23, Sec. 61, 28 Stat. 610; June 25, 1910, ch. 384, Sec. 1, 36 Stat. 770; Aug. 7, 1946, ch. 770, Sec. 1(62), 60 Stat. 871).
This section incorporates only part of former section 73. The balance will be found in section 308 of the revision.
“House of Representatives Publications Distribution Service” is substituted for “House Folding Room” because of the change of name under authority of Public Law 88-652.
Section Referred to in Other Sections
This section is referred to in section 4102 of this title; title 28 section 594.
The main thing I want you take from this section and our prior consideration of 44 USC ch. 19 is that the Superintendent of Documents is in charge of two potentially mutually exclusive programs. On the one hand this section of the law puts her in charge of the sales of public documents. In Chapter 19 of Title 44, she is named as the head of the Federal Depository Library Program, which mandates free public access to government information through the depository library system. Taken together, the law requires the Superintendent of Documents to provide free access to government information products while finding effective ways to sell them.
One view, understandably held by current Superintendent of Documents Judy Russell, is that the Depository and Sales programs are complementary. As she stated in her justified correction of my last installment:
By providing a means for individuals and organizations to purchase copies of Federal government publications, the GPO Sales Program complements free public access through tangible depository collections and free online access. It will continue to serve the public by providing an alternative to using tangible Federal publications in libraries or downloading/printing copies from the Internet.
Prior to the Internet age, I believe the programs were complementary. If you wanted to view a government document but were unwilling or unable to pay for it, you could go to one of the nation’s Federal Depository Libraries. If you wanted copies of government documents for your own use, or faster than a library could receive and process them, then you could walk into a GPO Bookstore or order documents by mail. In the early 1990s, I worked in the library of the Los Angeles office of the law firm of O’Melveny & Myers. As an acquisitions clerk, when I needed to get a government document fast, all I had to do was walk several blocks to the Los Angeles Government Printing Office (GPO) book store. It was great. They were well stocked and the staff were always friendly and professional.
In age of paper, the sales program and the depository system did different things. For my lawyers at O’Melveny, it wouldn’t have made sense to find a depository and borrow the document. For someone interested in a part of a single report, it wouldn’t make sense to buy the whole thing when they could copy a page at a depository library.
In an Internet age, I can see at least two potential major conflicts between the sales program and the depository program. First is that if GPO ever wants to sell electronic information products, they will have no alternative but to restrict depository access to that product. Otherwise, why would you buy a subscription to that product? Some of the ways that free access could be crippled but still “provided” are:
- Limit access to the information product to the physical depository library, thus forcing people to walk into a building if they want free access.
- Provide a simultaneous user license to allow depositories to provide remote access to a few users.
- Provide a DRM crippled version of an information product for free and a fee licensed version for greater functionality.
For a few products NOT sold by GPO, the future is now. Stat-USA and publications from the National Climatic Data Center (NCDC) Online Document Library are two databases that GPO has been able to obtain free access for depositories on the condition that access must take place within the bricks and mortar of the depository library and only a few people at a time may access the product. Unsurprisingly, since it might diminish subscriptions, neither the Stat-USA site nor the NCDC site informs you that free access through depository libraries is available. If you’re a regular citizen, you’d get the impression that you would need to shell out several hundred dollars for access to either site. A very high barrier when you just want to know the rainfall in Des Moines for 1999.
As far as I’m aware (and I hope GPO staff will correct me if I’m wrong), there is currently no electronic product directly produced by GPO that is being sold to the public. But this could change. It’s all a matter of policy and I see nothing in the law to stop sales of electronic information as long as some kind of free access is provided, even if it is inconvenient to citizen end users.
The second potential conflict that I see between the sales program and the depository program is tangible products being restricted to sales products and libraries forced to link to an electronic product, whether or not it is the proper format for users. We almost saw an example of this with the recent publication of:
American Military History, V. 1: The United States Army and the Forging of a Nation, 1775-1917
American Military History, V. 2: The United States Army in a Global Era, 1917-2003 (Casebound-Paper)
Paper copies of these two volumes were initially offered for sale, but not made available through the depository program except in online format. This may have been done through a defensible reading of SOD 301 – Superintendent of Documents Policy Statement, which states in part:
3. When the product is available both online and in a tangible format, the standard practice will be to disseminate the online version to depository libraries. At the time an online publication is identified for inclusion in the FDLP, it is captured and stored in the GPO electronic archive, unless GPO has an interagency agreement for permanent public access to the material. A tangible product will be distributed only if the online version is:
a. Incomplete. For example:
i. Online products that contain only selected or abstracted portions of the content provided in its entirety in the tangible product, or
ii. Kits comprised of mixed media tangible products where only a portion of the title is online.
b. Not recognized by the publishing agency as the controlling official version of a publication. That is, the publication is placed online for informational purposes and when discrepancies exist between the tangible and online versions, the tangible version takes precedence and is viewed as the controlling official version.1
c. Not easily identifiable as an official publication. For example, this can occur when the electronic version is on a non-verifiable Government or unofficial web site.
d. Very difficult to use, thus impeding access to data or content. For example this can occur when the product design imposes technological barriers to usage.
e. Not cost-effective. The costs associated with disseminating the online product exceed those for the tangible product. For example, this situation may arise with fee-based online services.
f. Fee-based, and created, all or in part, through the use of non-appropriated funds. For example, this can occur when the publishing agency designates the product as cooperative as provided in 44 U.S.C. Sec. 1903.
Although a defensible reading of SOD 301, it was a disappointment as one could argue that long books are in fact difficult to use in online format, especially if it is a PDF document being delivered over a slow connection. Some of the discussion about this document on govdoc-l noted that there was another part of SOD 301 that could have authorized tangible distribution (emphasis mine):
4. If a product is disseminated to depository libraries online and a tangible format is available, the tangible product will also be distributed if the tangible product meets special conditions or needs, i.e., when:
a. There is a legal requirement to distribute the product in tangible format, e.g., Journals of the House and Senate;
b. The tangible product is of significant reference value to most types of FDLP libraries, as may be the case with certain compilations, legal resources, permanent legal records or products of historical importance;
c. The tangible product is intended to serve a special needs population. For example, this could occur when the publication is in Braille or large print;
d. The commonly accepted medium of the user community is tangible format. For example, this could apply to maps and/or charts; or
e. The product is essential to the conduct of Government. GPO has identified a list of “Essential Titles for Public Use in Paper or Other Tangible Format” [http://www.access.gpo.gov/su_docs/fdlp/pubs/estitles.html]. When those titles are published in tangible format they will be made available for selection by depository libraries in that format.
i. If an agency ceases to publish an Essential Title in tangible format in favor of online dissemination, GPO will request electronic files suitable for printing from the publishing agency and its authorization to reproduce and distribute the title to depository libraries.
I think most depository librarians would agree that a two volume history of the US Army up to 2003 would definitely fall under 4(b) of SOD 301. In the end, it looks like GPO agreed with the community and obtained more physical copies to distribute to selecting libraries after considerable outcry on govdoc-l.
But a process like the one above insures only that items the community immediately notices for sale will get into the program in tangible format, even when a printed book may be a much better format, particularly for older users who are interested in history.
Next time we will skip over a few provisions of 44 USC ch. 17 and consider sec 1706, which allows private parties to have short print runs of documents done by GPO.
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