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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.
It is time for the biennial survey of FDLP libraries and, therefore, a good time to review “digital deposit.”
Digital deposit is a very simple concept: It simply means that GPO should treat digital and non-digital government information the same way. In so doing, GPO would allow FDLP libraries to select digital government information and GPO would deposit that digital information with the library. Libraries could then build their own digital collections and provide their own digital services for those collections. This is completely different from GPO’s definition of “online depositories” that point to, but do not have, digital files. In the digital deposit scenario, libraries would continue to be depositories regardless of format. 
Over the last twelve years, GPO has asked questions on the the biennial surveys that reveal meaningful FDLP library interest in digital deposit. GPO did not ask the same question on every survey and this makes it difficult to compare results over time. In spite of this, the responses from the FDLP community were remarkably consistent.
For example, when asked (in various ways) if libraries were interested in receiving files via digital deposit, hundreds of FDLP libraries consistently said they were interested: 394 in 2005, 453 in 2007, 416 in 2009, and 300 in 2015. (See the Appendix, below, for the details of all the numbers quoted in this post.)
Today’s lunchtime listen is FGI’s first podcast(!), a conversation recorded on July 25, 2016, with James A. Jacobs, James R. Jacobs, and Shari Laster discussing “Building a Collaborative FDLP.” If you missed that post, here’s an excerpt:
FDLP libraries can work together to provide, collectively, more than GPO — or any one library — can provide on its own. A collaborative FDLP is not one mega-library with one huge collection of only those documents that GPO can get. A collaborative FDLP consists of many curated collections that include Title 44 content, fugitive content (which GPO cannot force agencies to deposit), and non-Title-44 content that is out of GPO’s scope (e.g., FOIA’d documents, state/local/international government information, non-government information etc.). And each curated collection will have accompanying services tailored to that content for a community of users.
In such a collective approach, every community has access to the content and services it needs and every library provides a small slice of all those customized collections and services. In this approach, each library’s local-institutional community benefits from the contributions of every library.
This approach requires libraries to make one big change in the way they think of “communities.” In this approach, a “community” is a group of people who have common information needs — they need not live and work near any particular library or even near each other. In this approach every library focuses on one or more Designated Communities.1 In this approach every institution benefits from the collective work of all FDLP libraries rather than the individual work of only its own local-institutional library.
This approach will result in an FDLP collection that is more complete than GPO can build and maintain on its own and more comprehensive than Title 44; it will have much better functionality, and it will be more secure for the long-term.
Do you have ideas for more conversations and podcasts you’d like to hear? Please share your feedback in the comments!
Last month, the Government Publishing Office (GPO) released the National Plan for Access to U.S. Government Information: A Framework for a User-centric Service Approach to Permanent Public Access. The National Plan is the culmination of four years of study and planning activities conducted by GPO’s Library Services & Content Management (LSCM) in response to a range of factors that include directives from the Joint Committee on Printing (JCP) and the National Academy of Public Administration; seismic changes in government publishing and user information access practices; and the shifting mission of large academic research libraries.
For those interested in the background to the National Plan, I summarized some of the available information a few months ago. While a detailed development process is not included in the final document, GPO repeatedly solicited quantitative and qualitative data from depository libraries, most notably in its 2012 FDLP Forecast Study, as well as through the Biennial Survey process. GPO has already shared much of the information found in the National Plan in presentations to the community over the past year. As of this writing there is no public comment or feedback process; however, several of the sessions on the preliminary schedule for next month’s Depository Library Council virtual meeting pertain to the implementation of the National Plan, including presentations on public libraries, regional models, and the regional discard pilot project.
I recognize that there can be some hesitance in the depository librarian community in discussing a document like this in detail. After all, criticisms of the National Plan are functionally critiques of LSCM’s strategic direction, and by extension can be (mis)interpreted as criticisms of GPO and its leadership. In preemptive response, I agree with the FGI team: respectful, timely discourse makes our community stronger. I believe wholeheartedly that we all want a similar future: one in which government information is available for all to use and reuse, whenever and wherever it is needed. The vision and mission for the National Plan reflects this desire, as do the words and actions of the GPO staff who put the words into action. LSCM has been and continues to be uniquely positioned to coordinate and accomplish this work, and they have made commendable progress on many initiatives that will contribute to public access to government information for generations to come.
Like all FGI occasional contributors, I’m speaking only for myself, not my place of work, my library consortium, or the FGI team. But with that disclaimer out of the way, I think this document is an opportunity for depository librarians and others who care about future access to government information to identify where voices from the community can and should speak up to ensure that planned activities and initiatives are in alignment with the aspirational goals of sustaining permanent no-fee public access to government information. Our responsibility as a community to make sure that the promise of access is one that will be fully met through collaborative work with each other and engagement with GPO.
Structure and Format
GPO should be commended for producing a document that we can read, discuss, and share with others who care about government information. This is GPO’s plan for action and activities undertaken by LSCM: the National Plan contextualizes current priorities and initiatives, and provides a roadmap for where to expect LSCM’s focus to be going forward. It is also described as a ‘flexible framework,’ which suggests that the exact work to be conducted is yet to be determined, although several projects are underway and some are in the planning stages.
The core of the National Plan is the section of “Desired Outcomes and Actions,” which are based on a list of “Drivers of Change” that include the results of the 2012 FDLP Forecast Study, recommendations from the 2013 NAPA report on GPO commissioned by Congress, and a short but wide-ranging list of external influences. Each outcome is mapped to one of the “Principles of Government Information” adopted by GPO in 1996. Additional assumptions are also articulated that reflect the list of external influences.
The National Plan also presents three strategic priorities: lifecycle management of government information within LSCM to ensure permanent public access to digital government information; development of a sustainable structure for the FDLP; and the delivery of services that support depository libraries in providing accurate government information to the public in a timely fashion. While the strategic priorities relate to the “Drivers of Change,” they are not explicitly mapped to the vision and mission of the National Plan.
The language used throughout the National Plan is that of access rather than preservation. It is clear that enabling permanent public access to information is not the same as preserving information products, though the two go hand in hand. In general, the National Plan references concepts already in common usage in the community without further explanation. For example, there are no assumptions explicitly defining key terms like ‘access’ and ‘sustainability,’ but the concepts are used throughout the document.
To a certain extent, the National Plan is difficult to unpack and discuss because it is deeply non-specific. This lack of specificity has a particularly strong effect on action items pertaining to preservation. Of the six action items, three simply reference new programs (FIPNet, an LSCM Preservation Program, and a project to inventory “copies of record”), one pertains to access rather than preservation (working with partnerships to digitize the historical tangible collection), one relates to the development of guidelines, and one is to increase the profile of government information preservation at the national level. So although the reciprocal relationships between preservation and access are addressed in some ways, outcomes that reflect the government’s obligation to preserve its information are not fully articulated or supported.
Actions categorized as pertaining to right of access, dissemination of information, and authenticity are more specific, but the mapping of outcomes to principles is unclear. If this were to be the only public documentation guiding LSCM’s activities, then the community would have little insight into what GPO is trying to accomplish and why. As more detailed strategies and implementation plans are developed — I hope in consultation with the community at large — and disseminated, it should be possible to more confidently identify the extent to which a given action item will contribute to any given desired outcomes that can be mapped to shared goals and expectations.
The National Plan continues to frame depository libraries as supporters of public access rather than participants in the long-term management of government information, reflecting a broad and ongoing shift of framing libraries as service providers rather than collectors and organizers. Because the Regional discard policy has been approved and is currently in the implementation phase, we know that publications with authenticated digital versions in FDsys (and its successor, govinfo.gov) are eligible for Regional depository libraries to withdraw and discard under the oversight of the Superintendent of Documents. Other action items in the National Plan will lead to the ingest of more content into FDsys from depository libraries and third parties, and the authentication of this digital content, which makes more collections digitally accessible but also eligible for discard in print, a shift that could have a substantially negative effect on long-term access. An additional action item investigates the possibility that Regionals could decline to select certain materials in print/microformat altogether, and another identifies the development of requirements to facilitate pushing or depositing digital content to libraries.
While increased access to authenticated digital surrogates is a laudable measure for public access, taken as a whole the actions identified in the National Plan are framed by a continued shift of the responsibility for collection-building and preservation away from FDLP libraries, without introducing a clearly defined and workable alternative for the long-term preservation of print collections, and without adding the expectation of a meaningful role in digital preservation for these same institutions. (FIPNet is intended to fill this role, but as of this writing, this program is still mostly undefined.) The only action item directly addressing print collections in depository libraries is the development of collection care training for depository staff, and it is categorized as an action related to authenticity and integrity rather than preservation.
In general, changes to the FDLP are incorporated in the National Plan under the principle of disseminating government information, with a specified outcome of forming a sustainable network structure and governance process for the efficient management of depository collections and services. Depository libraries are only a small segment out of many potential public access channels, albeit a segment best poised to serve both marginalized and specialized users, and the National Plan identifies the need for LSCM to play a greater part in lifecycle management of information dissemination products within the federal government. However, under the National Plan, the alternatives for preservation outside of the depository library system are, at present, unclear.
Because the document is describing the role LSCM will adopt and the work it will accomplish, rather than a revised strategy for the FDLP as a program, the National Plan is not GPO’s definitive statement on the future of the FDLP. Based on this document, however, it seems reasonable to predict that GPO’s articulation of its vision for the future FDLP will reflect the priorities established in this document. With that understanding, presenting the National Plan as a document is in itself a significant step in the right direction because it gives the government information community a shared frame of reference in discussing GPO’s priorities and evaluating its accomplishments, and provides us with the opportunity to determine how our libraries and organizations, as well as the community as a whole, can respond to and engage with GPO initiatives as they move forward.
James A. Jacobs. “NAPA Releases Report on GPO.” http://freegovinfo.info/node/3862. Updated February 6, 2013.
James A. Jacobs and James R. Jacobs. “What You Need to Know About the New Discard Policy.” http://freegovinfo.info/node/10525. Updated November 30, 2015.
James R. Jacobs. “DLC Responds to Open Letter Regarding the New Regional Discard Policy” http://freegovinfo.info/node/10736. Updated January 18, 2016
Library Services & Content Management. “FDLP Forecast Study.” http://www.fdlp.gov/377-projects-active/1686-fdlp-forecast-study. Updated August 12, 2015.
—. “Federal Information Preservation Network.” http://www.fdlp.gov/project-list/federal-information-preservation-network. Updated April 13, 2015.
—. “Federal Information Preservation Network (FIPNet) – Answering Your Questions.” http://www.fdlp.gov/all-newsletters/featured-articles/2349-federal-information-preservation-network-fipnet-answering-your-questions. Updated December 21, 2015.
—. “JCP Approves Regional Discard Policy.” http://www.fdlp.gov/news-and-events/2403-jcp-approves-regional-discard-policy. Updated October 22, 2015.
National Academy of Public Administration. Rebooting the Government Printing Office: Keeping America Informed in the Digital Age. https://www.gpo.gov/pdfs/about/GPO_NAPA_Report_FINAL.pdf. January 2013.
Office of the Superintendent of Documents. National Plan for Access to U.S. Government Information: A Framework for a User-Centric Service Approach to Permanent Public Access. http://www.fdlp.gov/file-repository/about-the-fdlp/gpo-projects/national-plan-for-access-to-u-s-government-information/2700-national-plan-for-access-to-u-s-government-information-a-framework-for-a-user-centric-service-approach-to-permanent-public-access. February 2016.
Shari Laster. “Information Sharing and the National Plan.” http://freegovinfo.info/node/10569. Updated November 12, 2015.
—. “One Year Later…What’s Happening with Regionals and Discards?” http://freegovinfo.info/node/10285. Updated September 8, 2015.