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Modernizing the FDLP
We recently made several recommendations for strengthening Title 44 of the U.S. Code. In a new series of posts, we will explain the reasoning behind each of those recommendations.
Our first recommendation suggests how a very simple change to Title 44 would modernize the FDLP for the digital age and explicitly broaden its scope beyond paper "publications."
Modernize definition of “publications.”
Change the definition in §1901 from “Government publication” to “public information” as defined in 44 U.S. Code §3502 (12). Sample wording: “‘Government publication’ as used in this chapter, includes all ‘public information’ (44 USC 3502) which means any information, regardless of form or format, that an agency discloses, disseminates, or makes available to the public.” Include this same wording in §4101. Sample wording: “provide a system of online access to digital ‘public information’ (44 USC 3502).”
Title 44 §1901 currently defines the term "government publication”"
“Government publication” as used in this chapter, means informational matter which is published as an individual document at Government expense, or as required by law.”
This definition was useful in defining the scope of the FDLP in the print age and useful when Congress wanted to require "publication" of government information. But, in the digital age, both uses are out of date.
The U.S.Code and the Office of Management and Budget define different categories of government information. Perhaps most familiar to government information specialists are the categories of "records" and "publications." But these are just two of six categories — each one narrower than the one above it. The six categories are defined in OMB Circular A-130 (pp. 26‑37).
- Federal Information
- Public Information
- Information dissemination product
- Government Publication
We suggest that the most appropriate definition to use in §1901 is "Public Information," which is defined in Chapter 35 of Title 44:
The term "public information" means any information, regardless of form or format, that an agency discloses, disseminates, or makes available to the public.
This definition (which includes information that is disclosed, disseminated or made available to the public) is broader than “information dissemination product” (which only includes information that is “disseminated”) and broader than “government information” (which only includes information that is “published as an individual document”). It is narrower than "records."
Using "Public Information" instead of "government publication" in §1901, would broaden the scope of FDLP. Once an agency has disclosed, disseminated, or made information available to the public, it would be in the purview of FDLP.
This definition is appropriate in the digital age for two reasons. First, it updates the outdated limitation of "published as an individual document," which was precise for the print age, but is imprecise and limiting in the digital age of dynamic web pages, e-government services, multi-part PDFs, audio-video presentations, databases, etc. Second, it encompasses all "Federal Information" that an agency has made public — regardless of the form, format, circumstances, or methods of disclosure or dissemination.
Changing §1901 to cover all "public information" instead of just "government publications" would have several positive effects:
- It would make "Records" released under FOIA disclosures subject to permanent preservation and access in the FDLP.
- It would give GPO (or even individual FDLP libraries) a legal mandate to gather, harvest, receive, or otherwise ingest any federal government information that agencies put on the web.
- It would oblige OMB to update Circular A-130 “Management of Federal Information Resources” to match this definition. Circular A-130 already says that agencies have a responsibility to provide information to the public and that they can do so by making “government publications” available to depository libraries through GPO regardless of format pursuant to 44 U.S.C. Chapter 19. The new definition would provide OMB an opportunity to create a requirement for agencies to have Information Management Plans and to suggest they can fulfill their responsibility for preservation by deposit of their public information with GPO and FDLP libraries.
- Perhaps most importantly, it would broaden the definition sufficiently to include data and databases that contain public information but are only "disseminated" through e-government services (such as dynamic web pages). This would solve the problem of hard-to harvest websites by getting raw data suitable for preservation, reuse, and repurposing into FDLP.
- It would broaden the responsibility of the FDLP and make it easier for GPO and FDLP libraries to meet those responsibilities jointly through the existing, long-established, legally-mandated partnerships of Chapter 19.
- Jacobs, James A. and James R. Jacobs. 2015. FGI submits OMB A-130 comments Free Government Information (November 19, 2015). ↵
- Jacobs, James A. and James R. Jacobs. 2017. This is not a drill. The future of Title 44 and the depository library program hang in the balance. Free Government Information (July 27, 2017). ↵
- U.S. Office of Management and Budget. 2016. Circular A-130, Managing Federal Information as a Strategic Resource. (7/28/2016). ↵
James A. Jacobs, University of California San Diego
James R. Jacobs, Stanford University
This is welcome news re the US Supreme Court. Fulfilling a promise outlined by Chief Justice John G. Roberts Jr. in his 2014 year-end report on the federal judiciary, the Supreme Court is adopting electronic filing for all of its cases. The new electronic filing system will begin operation on November 13, 2017. Full and free Supreme Court dockets will be a boon to lawyers, researchers, students, and the public. Is this the beginning of the end for the Public Access to Court Electronic Records (PACER) system (he says hopefully!)?
After lagging behind other courts for years, the Supreme Court is finally catching up on a key technological feature that will be a boon to researchers, lawyers and analysts of all kinds. It’s moving to adopt electronic filing.
The change will allow the public to access legal filings for all future cases — free of charge. Beginning Nov. 13, the court will require “parties who are represented by counsel” to upload digital copies of their paper submissions. Parties representing themselves will have their filings uploaded by the court’s staff.
All those submissions will then be entered into an online docket for each case, and they will be accessible from the court’s homepage.
Stanford Library Director sends letter to Committee on House Admin in support of Title 44 and the FDLP
On Friday, Stanford Library Director Michael Keller sent a letter to the Committee on House Administration (CHA) in support of Title 44 and the FDLP (attached and text below). This same letter will also be going out to the Senators on the Joint Committee on Printing (JCP). With his permission, we are posting it here on FGI in the hopes that many other library directors will contact CHA and JCP — as well as the Depository Library Council. Please share with your library director and urge him or her to do the same.
Though we’ve publicly stated that Title 44 should not be changed at this moment, the wheels are already in motion. Therefore, it’s critical that the library community contact Congress to assure that any update to the law which defines the FDLP and public access to government information — in fact it’s beyond critical considering the current political climate in Washington DC.
For more context on this sudden push by CHA and GPO to change Title 44, please read our post “Reading between the tea leaves: more about revising Title 44.”
Dear Members of the Committee on House Administration:
Director of the Government Publishing Office (GPO) Davita Vance-Cooks proposed a careful and thoughtful evaluation of all chapters of Title 44 at the July 18, 2017 hearing of your committee. It has come to my attention that the committee has hired former Public Printer Robert Tapella to lead the committee’s review of Title 44 and that a draft bill is already in the works.
As you know, Title 44, which codifies the Federal Depository Library Program (FDLP) into law, is the only legal guarantee that the US government will provide its information for free to the General Public, the citizens of the USA. It also directly affects thousands of non-Federal Depository Library Program libraries by defining free public access to the essential information and records of our democracy.
We strongly support language that will empower FLDP libraries to continue the more than two hundred years of service to their communities and that will modernize their partnership with GPO to enhance and strengthen the preservation of federal government information.
We recommend that the committee share with the wider library community the draft bill currently being marked up so that the community of libraries and the publics that they serve can participate in revising a law that is working and has long served as the foundation of the public’s access to government information.
We also recommend that any changes to Title 44 affirmatively reflect four principles:
3) Free Access and Free Use
4) Modernized scope of information covered by Chapter 19 to include digital information.
Further, we recommend six specific changes to Title 44 that reflect those principles:
1) Modernize the definition of “publications.”
Change the definition in §1901 from “Government publication” to “public information” as defined in 44 U.S. Code § 3502 (12) and use this same wording in §4101.
2) Retain and enhance FREE use by the General Public.
Modernize §1911 to retain free access and to reflect the broader scope of Public Information. Sample text: “Depository libraries shall make all Public Information obtained through the depository program available for the free use of the general public.”
3) Prohibit fees for govinfo.gov.
Change wording of §4102 to remove “fee” and replace with same “free” language as Chapter 19. Sample wording: “The directory and the system shall be made available to the general public without charge.
4) Require Preservation.
Make changes to §1904 and §1905 to explicitly include “digital public information” that GPO will deposit by sending digital files (including metadata) to FDLP libraries. Define “digital depositories” as FDLP libraries that receive, store, preserve, and provide access to digital government information they acquire through the Depository Program. Modify the text of §1911 to define a class of FDLP digital preservation libraries. Those FDLP libraries will agree to retain all digital content sent through the depository program, will preserve that content in a true digital archive, and will make it available for the free use of the general public. Add text to §4101 requiring GPO to preserve and provide free public access to all the digital content once it has been added to its “electronic storage facility for Federal electronic information.”
5) Add a privacy provision for govinfo.gov.
Add a privacy provision to §4101. This provision should prohibit the use of technologies that track user individual-level activity. Text for this section could be drawn from 5 USC 552a and from OMB memorandum M-10-22, but should also prohibit the use by GPO of third-party web measurement and customization technologies.
6) Make all digital government information free.
Modify §1708 to: allow GPO to sell paper — including print-on-demand (POD) — and microformated documents to retailers at a wholesale price; mandate that GPO offer to FDLP libraries as selectable items all print/POD/microformat documents that it offers for sale to retailers; prohibit GPO from selling ebooks, PDFs and other digital formats.
FDLP libraries and the federal government have long worked in concert to offer access to and preservation of the public’s information and this should continue in the digital age. By modernizing Title 44 for the digital age, FDLP libraries will expand the services available to the General Public in ways that GPO cannot do by itself. FDLP Libraries remain committed to this cause.
Thank you for your time in this matter. I look forward to working with the committee to draft an update of Title 44 that facilitates the provision of the public’s own government information, supports public access to and preservation of government information, and works to maintain the historically important work of depository libraries.
Michael A. Keller
Director of Academic Information Resources
Publisher of Stanford University Press
More about revising Title 44
We learned a bit more about GPO’s intentions with regard to revising Title 44 when GPO Director Davita Vance-Cooks testified at a Hearing of the Committee on House Administration on July 18, 2017.
Hearing, July 18, 2017
In June, Vance-Cooks asked the Depository Library Council (DLC) to make recommendations for changes to Chapter 19 of Title 44 of the U.S. Code. As we wrote earlier, GPO’s announcement was troubling because it was so vague and because it opens up the law to changes that could erode FDLP and free public access to government information.
Because it appears that either GPO or the Committee on House Administration or both are committed to changing Title 44, we have already suggested changes that would conform to Principles of Free Public Access in the Digital Age.
Today we report on the July 18 hearing and present our analysis of it.
As we wrote last week the Government Publishing Office (GPO) has asked the Depository Library Council (DLC) to recommend changes to Title 44 of the US Code. We believe this is a bad idea at this moment in history and worry that the unspecified changes GPO wants will result in damage to the FDLP and long-term free public access to government information. We recognize that GPO may pursue this avenue anyway. We have now heard that there is a draft bill being worked on as we speak, so even the extremely short time-frame for public input suggested by GPO (AUGUST 31!!) may be too late for libraries to have *any* say in a law which deeply effects how libraries and the depository program work. We therefore present our suggestions to DLC. We invite you to submit your own recommendations and use any of our suggestions that you like.
I. Do Not open Title 44 to changes at this time
We believe that the wisest course of action at this time is to refrain from suggesting that Title 44 be amended at all. We have seen no evidence of any “champions in Congress” for GPO, FDLP, or long-term free public access to government information. In addition, the current political divisiveness in Congress and the current lack of support for government services in general makes it unlikely that we could get positive changes to Title 44. In fact, it seems to us more likely that we would get changes that converted free access to fee-based cost recovery or privatization or both. In short, We suggest you send your comments to DLC before the Aug 31 deadline and:
Recommend to DLC that GPO refrain from asking for changes to Title 44 at this time.
II. Principles of Free Public Access in the Digital Age
If DLC, or GPO, or the Committee on House Administration (CHA) — GPO’s oversight committee — insist on trying to modify Title 44, we believe the government information community should insist that some principles be preserved and even strengthened. The last time GPO voiced principles was 1996 (it repeated those principles in 2016). Although those principles are good as far as they go, they are grossly outdated in the digital age and do not adequately address either the nature of digital information or the needs of users in a digital age. We suggest you write to DLC and:
Recommend to DLC that any changes to Title 44 reflect these four principles:
- Free Access and Free Use
- Modernized scope of information covered by Title 44