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We posted about the Dept of Interior records schedule request to NARA and have been actively working on this issue for a few weeks now. Patrice McDermott, Director of Government Information Watch — many of you will have known Patrice from her ALA Washington Office days or laster as director of Open The Government — just posted the request below to govdoc-l so I thought I’d share beyond the govt documents library community. Please check out the draft letter that Patrice and several others in the FOIA/open govt communities have penned. Send any comments or concerns her way. And if you’d like to copy/paste anything from her letter — or from Stanford UL’s letter to AOTUS Ferriero for that matter — for your own comment to NARA, please do so BY NOVEMBER 26!
Here is a DRAFT letter/comments to NARA. Many thanks to the folks who have been working on this – this letter draws heavily on your work.
Thoughts, edits – and specific concerns about particular sets of records – welcomed. Please send to me [email protected]
It dawned on me that T’giving week is almost upon us… I plan to send this Friday 23 November. It is open to both organizational and individual signatories.
As you may know, the DOI has put in a request to NARA for disposition authority for a large # of record groups. Disposition does not equal immediate destruction; mostly the records would be marked Temporary — with ‘disposal’ dates that vary greatly based on the records, what they document, etc. Very few govt records (1-3%, according to NARA) are designated as Permanent/Archival.
The request is confusing to read & follow because DOI — following NARA guidance of recent years — has moved what used to be discrete series of records with discrete records schedules (as permanent or temporary) into what are being called ‘big buckets.’ The DOI request is essentially cross-walking discrete records series to their new bucket. And made the request for all of the buckets at one time.
- PDF of full DOI request
- PDF of Tabular Summary (expanded so Records Descriptions are readable in full)
- PDF Appraisal memo (from NARA)
The volume aside, there are a number of concerning aspects to this request.
I pulled together an annotated version of the NARA appraisal memo to get a handle on what was requested – and provisionally approved by NARA. I highlighted language in the Appraisal Memo (Blue=Good retention; Green = NARA comments worth noting; Orang(ish) = Concerning), and indicated the #s of Records Groups (not #s of records) covered in each NARA appraisal entry.
One aspect that has troubled me is from DOI’s Request for Records Disposition Authority
This change to a departmental schedule, from individual bureau schedules, moves disposition authority for Record Groups 022 (FWS), 049 (BLM), 057 (USGS), 075 (BIA), 079 (NPS), 115 (BOR), 471 (OSMRE),
473 (BSEE), and 589 (BOEMRE) to 048. (which is Office of the Secretary (OS) – Record Group 048)
Regardless of who the Secretary of Interior is or may be, it gives me pause to put authority for requesting disposal for these sensitive records in the office of a political appointee. So, there is a potential question for NARA (or its Hill overseers).
I am really troubled by the repeated language — by NARA — about “interest to NARA Researchers” (as opposed to??), and that records “do not document significant actions of federal officials”.
The legal definition of Records (44 U.S.C. Chapter 33)§ 3301) is:
(1) IN GENERAL.-As used in this chapter, the term “records”-
(A) includes all recorded information, regardless of form or characteristics, made or received by a Federal agency under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the United States Government or because of the informational value of data in them
I would welcome your thoughts on particular sets of records/buckets and how they have been appraised — where the appraisal may fail to address the research/legal/etc needs of other communities (other than “NARA researchers”), where data, on which ongoing datasets are built, might be irretrievably destroyed, etc.
Library Journal published our opinion piece in its “Peer to Peer Review” section today:
Save Government Information! by James A. Jacobs and James R. Jacobs. Library Journal Peer to Peer Review (March 15, 2018).
In it, we make the case that the impending Title 44 bill does not go far enough to building a truly collaborative, 21st century FDLP.
The draft bill to reform Title 44 of the U.S. Code provides some much needed improvements over the current law. It explicitly requires GPO to follow existing privacy laws and would, for the first time, legally require GPO to preserve digital government information. It also removes the provision that allows GPO to charge for online access and requires GPO to offer “no-fee” access to its online repository.
Unfortunately, the bill leaves some big loopholes in these improvements. Some of these loopholes are explicit — such as allowing GPO to delete online information without providing any principles or guidelines or goals to achieve when it does so. Some others, especially in chapters 1 and 3, implicitly and negatively impact GPO’s continued functioning via the privatization of printing and other GPO functions which will slash GPO’s budget and cause it not to be able to do any of the FDLP improvements in chapter 5.
But the biggest flaw in the draft bill is that it puts the burden of digital preservation and access in the sole control of GPO. This “all eggs in one basket” approach to access and preservation is not just risky, it is dangerous — and we do not use that word lightly. The danger comes from failing to distribute the responsibility for preservation and control of the information to trusted partners outside the federal government.
There has been a vocal fear that the current Presidential administration might take important digital government information offline or even destroy it — see for example the recent report from the Environmental and Governance Initiative (EDGI). But the danger of that happening was made possible by the weakness in the model that puts all digital government information under the control of the government. With control centralized, access and preservation are vulnerable to policy changes, financial short-falls, and technical problems of that government. Central control of the information creates a single off-switch that can be tripped all too easily — intentionally or unintentionally. The bill does provide more obstacles to a nefarious or malicious government wishing to delete information, but it does not prevent it. In fact, the bill does not just maintain this single off-switch model that was developed more than 20 years ago. It takes it out of the temporary GPO policies where it resides today and writes it into the much-harder-to-change law of the land, the U.S. Code.
The bill has many good intentions. Virtually every section of Chapter 5 explicitly supports long-term free public access. It also expands the scope of the FDLP to include most of the information that the government distributes. We do not think the drafters of the bill intended to write a law that gives government an off-switch. Nor do we think they intended to draft a bill that endangers long-term preservation of government information. The problem is that the draft would clearly have these effects, regardless of the intentions of the drafters.
We know skeptics of our critique of the weaknesses of the bill will say This Can’t Happen Here. But it can. If Congress changes priorities or does not adequately fund GPO, we could lose access and even lose raw information. If you don’t believe that could happen, look at Title 2, Chapter 15, §472 of the U.S. Code. That is the law that established the Office of Technology Assessment. The law still exists, but the office has not existed since 1995 because Congress simply refuses to fund it. There is a long history of government information being privatized, withdrawn, and otherwise lost in the paper-and-ink world. And we have seen small examples such as our loss of access to GPO services for a week in 2009, and when NASA took its Technical Report Server offline for a week, or when Inspectors General disabled links that documented massive unauthorized spending, or when the Treasury Department scrubbed a techical paper from its website because it did not reflect department policy even though the site explicitly says that such papers are not intended to reflect department policy. As we write this today, GPO just announced that, if the government shuts down this weekend, it cannot ensure that all PURLs will work and that “Federal Register services on FDsys/govinfo will be limited to documents that protect life and property.” In the digital age, it is exponentially easier to lose government information when all it takes is the flick of a switch.
We live in uncertain times, particularly with regards to the role of government and the funding of government programs. Changing the law to require long-term free public access to government information is essential and this bill does that. But supporting a law that assumes that future Congresses and Presidents will fully fund long-term free public access to government information and will refrain from exercising the power to withdraw, redact, or hide information is not just short-sighted; it is being willfully blind to the present.
The solution to the weaknesses of the draft bill is actually simple. The solution is to truly modernize the FDLP to ensure that digital government information, just like paper government documents, are under the control of FDLP libraries in addition to GPO.
We have heard some argue that the bill does modernize the FDLP — by instructing GPO to provide for “digital deposit” as an “option.” It does indeed make digital deposit optional — optional and explicitly segregated from every aspect of the depository system defined everywhere else in the bill. Instead of integrating digital content into the depository system, the bill explicitly describes Selective and Regional FDLP libraries as receiving only “tangible” materials. Instead of describing a depository system in which digital and tangible content are treated equally, the bill goes to great lengths to repeatedly segregate responsibility for “tangible” items (FDLs) from the responsibility for digital content (GPO). If FDLs are to share responsibility for digital content with GPO, the law must integrate that role rather than segregate it as the draft bill does. Our suggestions for changes do just that by making all digital content just as selectable as all paper content.
The good news is we can do all this with small changes to the bill — changes that actually simplify the language of the bill. The small changes that we recommend can ensure that those apparent good intentions of the drafters of the bill will be fulfilled regardless of policy or economic or technical problems in the future.
In the attached document, we suggest specific changes to the draft bill (highlighted text) and provide comments (blue text) explaining them and how they will help. The changes we suggest focus only on Chapter 5, the FDLP chapter of the bill. (We have heard that, because the other chapters of the bill have garnered so much opposition, a bill with just Chapter 5 may be introduced.)
We know that many of our colleagues have hoped for changes that would make the FDLP more “flexible” and that would maintain or increase the number of participating libraries. We believe that such changes should be tactics, not goals, and should be used only if they actually help ensure preservation and long-term free public access. That is why we focus our recommendations around 4 principles: Privacy, Preservation, Free Access and Free Use, and Modernizing the scope of information covered by Title 44. The changes that we recommend do provide FDLs and GPO with more flexibility while focusing on the needs of users. The modernized FDLP we describe will, we think, provide more value to users and therefore more incentives for libraries to remain part of or join the FDLP community.
James A. Jacobs, University of California San Diego
James R. Jacobs, Stanford University
[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.
“although the exact number of USDA publications could not be determined, the amount would be a small percentage because GPO focuses most of its efforts on congressional publications.”
We just came across this recent report of the GPO Inspector General (IG) called “Additional Information Needed for Ensuring Availability of Government Information Through the Federal Depository Library Program” (archived copy). Though this report was published the week before the recent Fall ’17 Depository Library Conference, it was not mentioned at all at conference, though there was information within the report which would have been incredibly useful for the Title 44 discussion held over the bulk of the first 2 days of conference.
There were some positives mentioned in the report. For example, I hadn’t known that GPO and the Library of Congress are currently working on a project to develop new strategies for increasing discovery and access to Government information across federal agencies. the project’s goals are to identify “top-level agency stakeholders in agency publishing,” make agencies aware of their Title 44 responsibilities and work on preservation policies for agency publications and especially born-digital materials.
Additionally, according to GPO, the approach it takes in finding agency publications is a “proactive” one. In general, the approach consists of: 1) providing a web presence and means for agencies to notify GPO of published documents; 2) directly contacting agency representatives, 3) reaching out to agency customers, and 4) web harvesting.
- “Some” Agencies Did Not Provide List of Publications to GPO, as Required (my quotes, the report did not specify a number.)
- GPO Policies and Procedures Need to be Detailed to Support Program Goals
- Strengthening Processes that Capture Government Publications
Although the GPO Inspector General “consider[s] management’s comments responsive to the three recommendations, which are considered resolved but will remain open until implementation of the proposed corrective actions,” we’re disturbed by some of the IG’s findings, especially in regard to the seeming nonchalance of GPO toward executive agency fugitive documents in general and the USDA in particular.
Though GPO has a supposedly “proactive” approach to capturing government publications, it seems that an inordinately large amount of executive publications are not made available to the FDLP, or otherwise collected, described or preserved (see the IG report’s analysis of USDA). Their Web harvesting program only has 6 Web archived USDA publications. And their outreach to agency customers is woefully inadequate as it seems from this report that very few agencies — or even the federal librarians working in those agencies! — are aware of their Title requirements, OMB Circular No. A-130, and other governing compliance requirements, have been contacted by GPO staff or even know that GPO exists. Case in point, on page 10 of the report, the Chief Collection Development Librarian for the U.S. National Agricultural Library had “identified and provided OIG with a list of 3,299 publications he believed should be included in the FDLP. The Librarian told us the information was not provided to GPO and that GPO had not contacted the Library for a list of issued publications.”
On a side — equally disturbing — note, we also found that a) none of the GPO IG’s investigation outcomes and only a very small percentage of the audits are available online; b) only the GPO IG’s semiannual reports to Congress are available on the new Oversight.gov site whose tagline is “all federal Inspector General reports in one place;” and c) even more worrying, NONE of them are cataloged in the CGP though they are hosted on GPO’s Website and presumably are within the scope of the FDLP. It seems like a no-brainer for ALL GPO IG REPORTS to be hosted on govinfo.gov in the GPO Collection.
We hope that GPO will be taking all necessary steps to implement the proposed corrective actions laid out by the IG. We will be sending this post and the IG report to Depository Library Council in the hopes that DLC can stress to GPO the ongoing importance of both digital and physical collection development activities to libraries and the public.
“Congress established the Federal Depository Library Program (FDLP) to provide free public access to Federal Government information. Creation, distribution, retention, and preservation of information has evolved from a simple tangible, paper-based process to now include digital processes managed primarily through various information technologies. Regardless of format, FDLP publications must conform to the definition of Government publications as defined in section 1902, title 44 of the United States Code (44 U.S.C. § 1901), GPO policy, and the Office of Management and Budget (OMB) Circular A-130, that is, generally all published Federal information products, regardless of format or medium, that are of public interest or educational value or produced using Federal funds.
The transition to digital information raises a number of issues resulting in more diverse responsibilities for GPO. In that context, the Office of Inspector General (OIG) conducted a review to determine the steps GPO took for ensuring information developed at the expense of taxpayers was made available to the public through the FDLP. To address our objective, in general, we tested compliance with select sections of Title 44, reviewed program goals and achievements, and tested processes used to capture Government publications at a select agency—the U.S. Department of Agriculture (USDA).”