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Free Government Information (FGI) is a place for initiating dialogue and building consensus among the various players (libraries, government agencies, non-profit organizations, researchers, journalists, etc.) who have a stake in the preservation of and perpetual free access to government information. FGI promotes free government information through collaboration, education, advocacy and research.

Suggestions for Revisions to Chapter 5 of the Title 44 Bill

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.

Authors:
James A. Jacobs, University of California San Diego
James R. Jacobs, Stanford University

Title 44 “reform”: Privatization of printing and erosion of GPO functions mean less public access

Happy 2018! We’re back after a quiet and relaxing new year hiatus. While it’s a new year, we’re still in the throes of Congressional “reform” of Title 44 of the US Code, which defines public printing, distribution of government information, and the federal depository library program (FDLP). Up to this point, we had focused our analysis of the Title 44 “reform” bill on chapter 5, which deals with the FDLP and also published Bernadine Abbott Hoduski’s eloquent argument for why the Joint Committee on Printing (JCP) should be kept.

Peggy Jarrett’s recent piece on LLRX “Legislation Alert: Worrisome Changes to Government Publications Are Possible” has spurred us to go back and look more closely at chapters 1 and 3 which deal with the Government Printing Office (yes this bill changes the name back to the antiquated Printing Office!) and “implementation of authorities.” We believe that these were deliberately embedded into the bill to slash GPO’s budget and hamstring GPO’s ability to provide necessary services, thus severely impacting both public access to government information and the FDLP system. We highly recommend that readers go back and read these 2 chapters with a fine toothed comb and help us sift through. The draft bill is set for markup by the Committee on House Administration (CHA) some time toward the end of January. So there’s still time for the library community to get a grasp of the fine print of the bill and recommend changes to our library lobbyists at the ALA Washington Office (the point person there is Gavin Baker) and directly to the committee.

Here are the lowlights of what we’ve found so far:

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The Congressional Joint Committee On Printing (JCP) Should Be Kept

[Editor’s note: Bernadine Abbott Hoduski has generously contributed the following article about the proposal to abolish the Joint Committee on Printing in the draft bill to reform Title 44 of the U.S. Code. No one is better placed to help us understand the importance of the JCP. She is a (retired) Professional Staff Member of the Congressional Joint Committee on Printing (21 years), the author of “Lobbying for Libraries and the Public’s Access to Government Information”, Rowman Publishing, ISBN 0-8108-4585-7, a former depository librarian, a member of the Depository Library Council to the Public Printer from 1973 to 1974, and one of the founders of the ALA Government Documents Round Table.]

THE CONGRESSIONAL JOINT COMMITTEE ON PRINTING (JCP) SHOULD BE KEPT AS THE NATION’S GUARDIAN OF PUBLIC ACCESS TO FEDERAL GOVERNMENT PUBLICATIONS AND INFORMATION

by Bernadine Abbott Hoduski
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FGI’s analysis of the draft Title 44 “reform” bill

[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.]

Introduction

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.

Evaluation

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.

Principles

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.

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Tune in Weds 9:30 am PST to KCSB FM Santa Barbara to hear FGI talk about all things Title 44!

UPDATE 11/28/2017: The audio of our interview is now safely preserved and available at the Internet Archive!


Our pals Gary Colmenar and Elizabeth Robinson cohost the radio show “No Alibis” on KCSB Santa Barbara wednesdays from 9am – 11am. No Alibis is a “Critical look at news, both domestic and international, from the dystopian to the utopian.” And this Wednesday November 22 at around 9:30am Pacific, you’ll have your chance to hear Shari Laster and I wax utopian about all things Title 44. Stream it live over the internet! If you can’t tune in at 9:30am (and really, what else do you have to do at that time?!) we’ll be posted the audio for your listening pleasure shortly after the show is done.

And of course, as any govinfo wonk worth her salt, we gave Gary and Elizabeth some background readings so they’ll be able to keep their heads above the weeds.

Background readings:

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