ARCHIVED: The Future of Government Information: Permanent Public Access and Dissemination

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NOCALL/SCALL Joint Institute
February 27, 1999

The Future of Government Information: Permanent Public Access and Dissemination

by Mary Alice Baish
Associate Washington Affairs Representative
American Association of Law Libraries

I am delighted to be here with you this afternoon, not only because of the beautiful Monterey scenery and climate--a far cry from our blustery winter weather in Washington--but especially because of the tremendous admiration and gratitude that I will always have for NOCALL and SCALL. Your chapters first earned my respect back in 1996 when I was very new at the Washington Affairs Office, and learned of all the good work being done by Cathy Hardy, Judy Janes, David McFadden, Susanne Dyer, Shirley David--and many others--to draft and enact legislation that closed certain loopholes in California's public records law. The enactment of Chapter 928 ensured that legislative records and agency rulemaking files would be systematically retained, made available to the public, and permanently preserved.

This was a huge victory for NOCALL and SCALL, earning you special recognition at the 1997 Madison Award ceremony and our Annual Meeting in Baltimore that summer. But above and beyond your commendable efforts, your hard work demonstrated to me new opportunities and challenges for our thirty chapters that have culminated in the chapter liaison project of the AALL Government Relations Committee. Our goal is to develop stronger ties with our chapters, and to persuade more chapters to follow your lead in actively engaging in important state and local policy initiatives. AALL's overall lobbying effectiveness will be greatly enhanced when we work more closely together in cooperative efforts on federal, state and local issues.

So, with that said, I thank you for inviting me to join you today and it is indeed a pleasure for me to appear on a panel with the Public Printer, Michael DiMario, to talk about "The Future of Government Documents." Actually, while we all know what a government "document" is, the public rarely does--so I prefer to use the broader term government "information," or the term we used last year in drafting the chapter 19 revision to Title 44 that was incorporated into S. 2288, government "publication."

I'd like to cover three key areas this afternoon:

  • First, we need to think about government information today in terms of electronic access and dissemination, acknowledging at the same time that depository libraries will continue for the foreseeable future to receive publications in print, on microfiche and on CD-ROM.
  • Second, we cannot afford to ignore the efforts by agencies, and historically, by the courts, to circumvent the depository library program at the federal level; nor can we ignore the increasing model of copyright or other downstream restrictions placed on access to federal, state and local government electronic information.
  • And third, we believe that the time has come for all levels of government to embrace state-of-the-art technologies and the Internet to improve public access to government information. This is good public policy, and an area in which AALL and our chapters have demonstrated a fine level of leadership. But more is needed--including, I believe, enactment during the 106th Congress of some of the key provisions that were included in last year's Title 44 reform bill, S. 2288, to strengthen access and dissemination through the Federal Depository Library Program.
First, as I noted in the recent joint library testimony to support the Public Printer's FY 2000 appropriations request for the Federal Depository Library Program, when Congress enacted the GPO Electronic Information Access Act in 1993 (Public Law 103-40), it set the stage for the creation of the GPO Access system, a central access point within the Government Printing Office for electronic government information. GPO Access has developed to become today an award-winning digital collection of more than 70 official government databases from all three branches of government, including Congressional bills, the Congressional Record, the Federal Register, and the Code of Federal Regulations. Monthly usage statistics of GPO Access are dramatic: in October 1995, approximately 840,000 documents were downloaded; today, between 12.5 and 15 million documents are downloaded monthly. Mike, the development of GPO Access is very impressive and a job well done. We thank you for your leadership and commitment.

According to GPO statistics for FY 1999, approximately 50% of all titles disseminated to federal depository libraries were in electronic format, mostly through GPO Access. GPO has made significant progress during the past year in developing the FDLP Electronic Collection that today consists of over 140,000 electronic titles. Approximately 85,000 of these titles are available on GPO Access. GPO's electronic locator services, uniquely important in helping citizens locate the electronic government information they need, link to an additional 48,000 titles that exist at agency web sites. GPO has recently issued new guidelines on Managing the FDLP Electronic Collection. This blueprint for action is based on the need to work closely with federal agencies, depository libraries, and other partners to increase the amount of electronic resources available through the FDLP and to ensure that they remain permanently available.

At the same time, though, as Ridley Kessler, Regional Depository Librarian at UNC-Chapel Hill, recently noted at the House hearing on GPO's FY 2000 appropriations request for the FDLP, the UNC regional depository in FY 1997-98 received approximately 12,500 print titles, 1,000 CD-ROM and 38,500 microfiche. So while GPO has made great strides in moving towards a more electronic Program, and more and more Americans have Internet access through their offices and homes to locate and use the government information they need, depository libraries will continue for the foreseeable future to build their tangible collections.

Which leads me to my second point, that one can not discuss the future of government information without acknowledging the fact that the system which Congress established to provide equitable public access to government information through the depository library system is often ignored by government agencies, and certainly, historically, by the federal courts. As more and more agencies disregard current law to procure or produce tangible publications outside of the Government Printing Office, the number of "fugitive" documents increases. Public Printer Michael DiMario has estimated in the past that 50% of government information is "fugitive." Let me quickly list for you six very troubling, yet growing, trends in federal--and we may as well add, state and local-- government publishing that contribute to the problem of "fugitive" documents:

  • First, decentralization. When agencies procure a publication or create a paper or tangible electronic product outside of the Government Printing Office, these publications rarely are disseminated through the FDLP.
  • Second, agency in-house printing. When agencies use docutext or other very expensive equipment to produce public documents in-house rather than through the Government Printing Office, these publications rarely are disseminated through the FDLP. As an aside here, I would like to note that the company which makes and sells these docutext machines, Xerox Corporation, and other IT firms effectively killed S. 2288 last fall. Their businesses thrive when government publishing is in a state of chaos. And by that, I mean that there are no enforcement measures for agencies to comply with the law.
  • Third, privatization. When the work of federal agencies and employees is transferred to private sector firms for the production of information products and services, these publications rarely are disseminated through the FDLP.
  • Fourth, commercialization. When agencies sell information products and services to recover costs or to generate revenues, these publications rarely are disseminated through the FDLP. Once they become known to the library community and pressure by the Joint Committee on Printing and GPO is brought to bear on the commercial entity, some of these publications are, in the end, disseminated to depository libraries.
  • Fifth, copyright and copyright-like restrictions on government information. When the use and dissemination of government information in any format is restricted by an agency or a private sector firm to which the government information has been given, the ability of the public to use the information fully is impaired. These restrictions occur increasingly with electronic products and services. We have only to observe the current situation with Internet access to the California Code of Regulations (CCR), Maryland's COMAR, and EPA's Worst Case Scenarios to note the seriousness of these barriers to public access.
  • And, last but not least, the loss of online electronic information products published solely through an agency Web site. Many agencies are not aware of the long-term value of their publications, and when these are removed from agency Web sties, often they are not captured for preservation and permanent public access. Future researchers and historians may well look back on this wonderful age of electronic publishing, so full of promise and possibilities, as a government information black hole. There are a couple of egregious examples here as well. When Secretary Robert Reich left the U.S. Department of Labor a few years ago, most of the web publications produced during his tenure were removed from the agency's web site. And, while we really thought that the Senate Rules Committee understood everything there is to know about permanent public access after two years of work on S. 2288, our moderator today, Andrea Sevetson, recently discovered that none of last year's testimony on S. 2288 is currently on the Committee's web site. If you were lucky enough to have bookmarked it, the testimony is still there--but the current web site offers no information at all about those hearings.

I could give you give you a long laundry list of other titles that fit the preceding models, but let me name just a couple more. We can start with the publications produced by the Department of Commerce's National Technical Information Service (NTIS). After years of promises, NTIS finally agreed to enter into a pilot project to provide image files of NTIS publications to a few selected depository libraries. I'm not quite certain of the current status of this initiative, but am sure that Mr. DiMario can give us an update. It is a very important initiative because NTIS publications have high public interest, not only for the scientific and technical reports, but also for the increasing number of core business titles that they produce.

The Defense Information and Technical Center (DTIC) is another villain. They have a wonderful web site where the public can easily locate an index to what was formerly an important print depository title that has migrated to the web, Military Specifications and Standards. The only problem is that to get beyond the index screens, to the needed information, the public has to pay a fee--and the agency has not provided no-fee access to these important resources through depository libraries.

Other egregious examples are the National Cancer Institute, who sold their Journal to Oxford University Press, and the Department of Commerce, who contracted with McGraw Hill to produce the U.S. Industry & Trade Outlook. In both cases, promises were made by these companies to provide GPO with depository copies--but these partnership agreements are troubling and they raise many other issues, like authenticity, since these are no longer government publications, and copyright concerns.

With those examples in mind, I'd like to turn to my third point, that all levels of government should follow good public policy, grasping the opportunities of electronic publishing and the Internet to put government information into the hands of citizens. We commend agencies, such as the National Library of Medicine who a year ago made the MEDLINE database available to the public at no fee, and the Patent and Trademark Office who continually enhance their databases that also are available at no fee through the Internet.

As a member of the Inter-Association Working Group on Government Information Policy (IAWG) during the 105th Congress, I worked closely with my library colleagues--including Andrea-- and with congressional staff to develop the chapter 19 provisions of S. 2288, the Wendell H. Ford Government Publications Reform Act of 1998. It was very important to the IAWG that the judiciary be included in this revision of Title 44, and all concurred that it is the responsibility of the federal courts to provide access to court opinions.

Bob Oakley testified in support of S. 2288 at the July Senate Rules Committee hearing, and was given follow-up questions from Chairman John Warner (R-VA) regarding the Judiciary. In asking advice on how to entice the courts to comply with the FDLP provisions of the bill, Warner noted that S. 2288 is very deferential to the courts, yet at the same time it is very clear in expressing the Committee's intent to have the courts participate fully. Oakley responded that "it is a propitious moment in the history of public access to government information to propel the Judiciary towards a new model of broad public access by embracing electronic technologies to democratize American jurisprudence for all citizens on an equal basis." He added that the courts should take advantage of electronic technologies and the Internet to produce and disseminate Federal court opinions in an efficient, cost-effective and official manner.

Bob also noted that several Federal courts have created homepages; but unfortunately, few of these at this time include access to the court's actual decisions but rather provide the user with a link to the government's PACER (Public Access to Court Electronic Records) system at an online fee of $0.60 per minute. We believe--and have had informal discussions with Mr. DiMario--that we should work together with GPO and the Administrative Office of the U.S. Courts to get PACER access into the FDLP. In our view, PACER is no different from the Department of Commerce's STAT-USA, a fee-based service which is available to FDLPs .

It is good public policy for our citizens to have comprehensive access to the rule of law, a term which we have heard mentioned so often this year by members of Congress. That access must extend to primary legal materials, including: statutes and congressional or other legislative publications; regulations; court opinions and rules; regulatory rulings; and agency decisions. That should be our goal.

There are already several new bills of interest that we need to monitor. Sen. John McCain and Rep. Christopher Shays have renewed efforts to provide public access to certain reports of the Congressional Research Service (CRS) through the Internet via the websites of individual members and congressional committees. In early February, Sen. Tom Daschle (D-SD) posted almost 300-- of an estimated 2,700--of these valuable reports that were either written or updated during the 105th Congress. McCain's bill, S. 393, is broader than the House bill, H.R. 654, in that it also includes other congressional materials and a "sense of the Senate" that each Senate committee "should" provide Internet access to committee information, including bills, reports and transcripts of their proceedings.

While we should all be grateful for access to more of these valuable congressional publications--and AALL certainly supports this legislation--the drafters regrettably failed to provide for a centralized locator to help citizens find the reports they need since they will be scattered among a plethora of congressional web sites. Nor is the larger issue of permanent public access to this information addressed. We hope to work with Congress in improving these bills to resolve these two important concerns.

To conclude, depository libraries will continue to receive print, microfiche and CD-ROM publications for the foreseeable future while GPO continues to build the FDLP Electronic Collection. We must continue the battle--sometimes title by title--with those agencies that circumvent the depository library program. And most importantly, we must renew our efforts to urge all levels of government to use state-of-the-art technologies and the Internet to improve current and future public access to government information. I hope that with the 106th Congress, we will find champions for many of our chapter 19 provisions to improve public access and strengthen the FDLP.

Finally, I'd like to personally invite everyone in this room--a whole California contingent--to join us in Washington on July 16, 1999 for AALL's first lobbying and legislative day. Your very own Shirley David, a member of AALL's Government Relations Committee, is co-coordinating this important workshop with me. Thank you very much, and I hope to see all of you in Washington this summer.