October 12, 1998
The Library Perspective: Ensuring the Right of Future Generations to Access Today's Government Cyber-Jello
by Mary Alice Baish
American Association of Law Libraries
I am very pleased to be here with you this afternoon representing the American Association of Law Libraries. Since January 1997, I have also been a member of the Inter-Association Working Group on Government Information Policy (IAWG) that has worked closely with congressional staff to develop the chapter 19 provisions of S. 2288, the Wendell H. Ford Government Publications Reform Act of 1998.
S. 2288 was named in honor of Senator Ford, Ranking Minority Member of the Senate Committee on Rules and Administration, who is retiring this year from a distinguished Senate career. Both Sen. Ford, and Committee Chairman John Warner have long championed public access to government information and the Federal Depository Library Program (FDLP). S. 2288 was introduced in mid-July after a year and a half of intense negotiation to develop a bipartisan, bicameral consensus bill to reform a law that for well over a hundred years has determined how the government publishes and disseminates its information.
With so many interested parties--including GPO, the unions, the printers, Congress, the Administration, the courts, the information industry, the information technology industry, the library community and public interest groups, we can not even pretend that S. 2288 is a consensus bill. Opposition to it, especially during the past six weeks, has been intense. In the chaotic waning days of the 105th Congress, the future of S. 2288 as favorably reported out of committee is bleak.
However, I'll give you the status report on S. 2288 later. I would like to begin by providing some background on the library community's involvement and interest in the reform of Title 44. I hope that everyone has picked up a copy of the IAWG Issue Brief dated July 29, 1998 that summarizes our testimony at the first hearing on S. 2288. At that hearing, three witnesses representing the library community strongly supported the legislation and urged its enactment this year. Our testimony was based on the belief that S. 2288 fulfills the IAWG's three goals for the reform of Title 44, which are:
- GOAL 1: The law must broaden, strengthen, and enhance public access to all forms of government information from all three branches.
- GOAL 2: The law must strengthen the role of the Superintendent of Documents and the Federal Depository Library Program in providing public access to government information.
GOAL 3: The law must establish the affirmative responsibility of the federal government to preserve and provide permanent public access to its information, and to ensure the authenticity of government information.
One of the strongest reasons why we support S. 2288 is that the status quo of today's government publishing and dissemination is simply not good enough. We are witnessing a convergence of technological innovation coupled with a lack of compliance with current U.S.C. Title 44 that together create barriers to the public's ability to locate and use government information. The library community strongly believes that the need to reform Title 44 this year to address these issues is compelling and urgent.
As more and more agencies disregard current law to procure or produce publications outside of the Government Printing Office (GPO), the number of "fugitive" documents increases. Public Printer Michael DiMario has estimated that 50% of government information is "fugitive." The following very troubling yet growing trends in government publishing contribute to this problem:
- Decentralization. When agencies procure the publication or creation of a paper or tangible electronic product outside of the Government Printing Office, these publications rarely are disseminated through the FDLP.
- 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.
- 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.
- Commercialization. When agencies sell information products and services to recover costs or to generate revenues, these publications rarely are disseminated through the FDLP.
- 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.
- 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.
In addition to the IAWG goals, in June 1997 we transmitted to Congress the first of three drafts to revise chapter 19, the Federal Information Access Act of 1998, that contained provisions dealing with the Federal Depository Library Program. The IAWG worked closely with congressional staff in developing Title IV of S. 2288, with the result that most of our language was incorporated into the legislation and meets our goals,
- First, by affirming the long-standing policy of no-fee public access to federal government publications through a system of geographically-dispersed designated libraries. The bill changes the name of the Federal Depository Library Program (FDLP) to the Federal Publications Access Program, and grandfathers and renames the nearly 1400 Federal Depository Libraries as Federal Publications Access Libraries.
Second, by increasing the visibility of the Superintendent of Documents, making this a new presidentially-appointed position with regulatory authority. We believe that a revised Title 44 must include provisions giving the Superintendent of Documents the necessary authority to enforce its dissemination requirements and to assume government-wide responsibility as the "trustee" for the permanent public access of electronic publications.
Third, by explicitly expanding the scope of the FDLP to include publications in all formats from all three branches of government, thus recognizing both the challenges and opportunities of electronic information technologies. One of the most glaring examples of non-compliance with the dissemination requirements of Title 44 is that of the Judicial Branch, and specifically the lower Federal courts. The library community believes that the American public must have access to the law of the land and that court opinions must be made available through the access program. Today, only the slip opinions of the Supreme Court and the bound United States Reports are produced by GPO and thus distributed to depository libraries.
Fourth, by legislating notification requirements for tangible products so that the Superintendent can ride procurement orders at the lowest possible rate; by legislating notification requirements for agency Web-based publications so that these can be cataloged or included in GPO's locator services; and by legislating a strong enforcement measure, "teeth," for agency non-compliance.
And fifth, by creating a two-year permanent public access committee that includes representatives from the National Archives and Records Administration (NARA), the Office of Management and Budget, federal agencies, the judiciary, the national libraries, librarians, the private sector and other constituencies, under the direction of the Superintendent.
One of the frustrations of librarians and users alike is that, while agencies have embraced the Internet as a means of timely and low-cost public access to their publications, many agencies lack an understanding of the necessity to preserve valuable materials for permanent public access. Document librarians have in fact compiled a substantial list of titles that are no longer available in print and that have disappeared from agency Web sites (http://www.lib.berkeley.edu/GODORT/9808missing.html
). This legislation makes the Superintendent the government's permanent public access "trustee." The bill is very clear also about recognizing the distinction between the permanent public access of program publications and the preservation of federal records, which is the mission of the National Archives and Records Administration.
Hearing on first draft, May 1997
Three hearings were held in April and May 1997 on the Government Printing Office Act of 1997, a draft bill crafted by staff of the Joint Committee on Printing to provide a starting point for the reform of Title 44. Reaction was generally favorable to the provisions for improved public access and a strengthened FDLP, but there was fairly unanimous criticism to a provision that would have established the Government Printing Office as an executive branch regulatory agency.
S. 2288 introduced, July 10, 1998
More than a year later, Sen. John Warner introduced S. 2288, a 165-page bill to "provide for the reform and continuing legislative oversight of the production, procurement, dissemination, and permanent public access of the Government's publications." Sen. Wendell Ford, whose last-minute negotiations with the unions paved the way for the bill's introduction, became its first cosponsor.
First hearing-- "friendly"-- July 29, 1998
The Issue Brief handout describes the library community's testimony in strong support of S. 2288 at this hearing, and the key provisions of chapter 19. Dan Duncan and Patrice McDermott also represented their organizations with overall favorable testimony, although each raised some issues that they believed needed further clarification. GPO, the Council of GPO Unions and the Communications Workers of American were represented by the third panel, and again, expressed overall support but articulated some serious concerns
Second hearing--"opposition"-- September 16, 1998
During the August recess, strong opposition to this legislation grew, prompting a second hearing last month to allow representatives of the information technology community to raise their concerns which focus primarily on the centralized procurement through GPO. Testifying at this hearing were the Vice President of Xerox Corporation, a representative of the Professional Services Council, and the President of ABC Advisors, Inc.. The first two witnesses argued that S. 2288 flies in the face of the Clinger-Cohen Act, which authorizes a decentralized procurement system for agencies, and they also strongly opposed provisions of the bill to reduce in-house agency printing. The President of ABC Advisors stated his belief that GPO should not be authorized to enhance its centralized competitive print procurement system because it would compete with his own value-added procurement service. In his concluding remarks to these witnesses, Sen. Ford expressed his belief that, even though he understood their bottom line--sales--the public's right to government information, created at taxpayer expense, was more important.
Mark-up and reported, September 28, 1998
The Senate Rules Committee was finally able to assemble a quorum on September 28th, and by voice vote approved the Chairman's Mark and favorably reported S. 2288 out of Committee. Sen. Kay Bailey Hutchison voiced dissent, objecting to the mandated centralized procurement through GPO and what her staff refers to as the "sweetheart" union provisions. Three of the four absent committee members are known to oppose these same provisions. The Committee Report on S. 2288 has yet to be filed.
What's next without S. 2288?
The future of the Joint Committee on Printing
If S. 2288 is enacted, the JCP's functions and authorities will be transferred in an orderly fashion, as appropriate, to the Senate Rules and Administration Committee, the House Oversight Committee, and the Public Printer. If S. 2288 is not enacted, funding for the JCP will end on December 31, 1998 and it will become a "virtual" committee similar to the Joint Committee on the Library. The Legislative Branch Appropriations Act for FY 1999, while zero budgeting the JCP as of January 1999, does provide $150,000 to each of the two authorizing committees for staff.
Chaos from decentralized procurement
It's fairly easy to predict that more agencies will regularly publish or procure tangible products outside of GPO since the inability to enforce the current Title 44 will continue. S. 2288 sets up a transparent mechanism to retain the link between the procurement or production of tangible products and their dissemination. While opponents of this centralization refer to it as GPO's monopolistic "control," it is in fact the most effective means of ensuring public access through access libraries.
More "fugitive" publications, tangible and Web-based
The privatization and commercialization of government publications will increase, the number of "fugitive documents" will soar, and in some instances, government information may be removed from the public domain or their downstream use may be restricted. As for Web-based publications, unless they are systematically cataloged or made part of a locator service--two important functions of the GPO Access system-- many of these may be considered "fugitive" because they are difficult, if not impossible, for the public to locate them.
Loss of agency Web publications
Without S. 2288, no one within government will have responsibility for the permanent public access of Web-based publications, and agencies will continue to remove important information from their Web sites without capturing them for future use. We believe that this responsibility should be assumed by the Superintendent of Documents as a natural extension of the role of regional depository libraries to permanently retain tangible government publications.
Judicial branch non-compliance with dissemination requirements of Title 44
The library community believes that public access to American jurisprudence is essential to our democratic society. S. 2288 demonstrates the commitment of the Senate Rules Committee to provide the American public with access to judicial branch publications, including court opinions, through access libraries.
There is a slim chance that, out of the 168-page bill, the most important provisions of S. 2288 for the library community--Title I, which eliminates the JCP and transfers its functions in an orderly fashion, and Title IV, which strengthens the depository library program--may survive. Since last Thursday, various slimmed down versions have been floated around, with the intention of attaching a streamlined S. 2288 to the omnibus funding legislation. Our understanding is that the White House has promised to support the legislation if passed by Congress. You may follow further developments through the IAWG homepage listed on the back of the Issue Brief. Thank you very much for your interest in this legislation, and for your kind attention this afternoon.