ARCHIVED: S.2288, The Wendell H. Ford Government Publications Reform Act of 1998

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TESTIMONY REGARDING S. 2288, THE WENDELL H. FORD
GOVERNMENT PUBLICATIONS REFORM ACT OF 1998

UNITED STATES SENATE
COMMITTEE ON RULES AND ADMINISTRATION

PRESENTED ON BEHALF OF THE
AMERICAN ASSOCIATION OF LAW LIBRARIES
AMERICAN LIBRARY ASSOCIATION
ASSOCIATION OF RESEARCH LIBRARIES
CHIEF OFFICERS OF STATE LIBRARY AGENCIES
MEDICAL LIBRARY ASSOCIATION
SPECIAL LIBRARIES ASSOCIATION
URBAN LIBRARIES COUNCIL

BY PROF. ROBERT L. OAKLEY, LIBRARY DIRECTOR
GEORGETOWN UNIVERSITY LAW CENTER

JULY 29, 1998

Good morning. My name is Robert Oakley and I am a Professor of Law at the Georgetown University Law Center and Director of the Law Center's Library. I also serve as Washington Affairs Representative for the American Association of Law Libraries. I am honored to appear before the Committee today not only on behalf of AALL, but also for the American Library Association, the Association of Research Libraries, the Chief Officers of State Library Agencies, the Medical Library Association, the Special Libraries Association, and the Urban Libraries Council.

Together, we have participated over the past year and a half in the Inter-Association Working Group on Government Information Policy, and we represent more than 80,000 librarians, information specialists, library trustees, friends of libraries, and their institutions all dedicated to public access to government information. Our members know first-hand, on a daily basis, the importance and impact that government information has on the health and lives of all Americans, on the economic well-being of our nation and on the preservation of our democracy. In a very real sense my purpose in appearing before this Committee today is to speak for the public interest as well as for the library community since it is the American public who will reap the benefits of the reform to Title 44 that are proposed in S. 2288, the Wendell H. Ford Government Publications Reform Act of 1998.

I would like to begin my statement by reiterating the library community's full support of S. 2288 as expressed in the testimony of Barbara Ford and Daniel O'Mahony this morning, and to thank you, Chairman Warner, and you, Senator Ford, for the commitment that you have brought to this important piece of legislation. The purpose of my testimony today is to provide a broad historical and constitutional perspective to the issues before this Committee. As you both so eloquently expressed in your introductory statements regarding S. 2288 in the Congressional Record, of July 10, 1998, our democracy is based on the absolute right of all American citizens to participate in their government. From its earliest days, Congress wisely recognized the importance of the public's right and need to have access to the information created by the federal government. The Annals of Congress, precursor to today's bound Congressional Record, were first published in 1789 to provide citizens with an official record of the debate and deliberations of their representatives in Congress.

The early history of government publishing and dissemination is relevant to the role of the Government Printing Office (GPO) today, and to the need to further amend the law to broaden and enhance public access into the 21st century. The roots of the Federal Depository Library Program (FDLP) run deep--for 185 years libraries have played an integral role in putting government publications into the hands of American citizens. In the earliest days of our nation, each House of Congress contracted annually for its own printing by the first "public printers." Congress established the Joint Committee on Printing in 1846 to deal with problems and delays that Congress had with these "public printers." In 1852, Congress created the position of Superintendent of Public Printing to take responsibility for the printing of both Houses of Congress, as well as for departments and bureaus in the Executive branch. The Superintendent also was responsible for authorizing payment and for ensuring that printing jobs met appropriate standards. Congress placed the operations of the Superintendent in the Department of the Interior, and the Joint Committee on Printing took on an expanded role of overseeing the Superintendent and resolving disputes between the Superintendent and the various public printers that serviced the government.

In 1860, a new printing act was passed that created the Government Printing Office and authorized the Superintendent to construct a building, hire printing and binding staff, and carry out the printing needs of Congress, as well as the Executive and Judicial branches of government. With its origins as a decentralized operation using various public printers, the production and distribution of government information for all three branches evolved into a centralized Government Printing Office in the Executive Branch under the oversight of the Joint Committee on Printing.

In 1895, the last major revision was made to the government's printing laws with the transfer of the Government Printing Office from the Executive to the Legislative branch, acknowledging the importance of Congressional oversight to the government's centralized printing and distribution system. This law also changed the name of the Superintendent of Printing to the Public Printer and created a new office of Superintendent of Documents responsible for the dissemination of government information products to the American public. Under the oversight of Congress, the dual functions of the Government Printing Office have provided the important link between the production of tangible government publications and their dissemination through the Federal Depository Library Program.

One hundred and three years later, we appear before this Committee to comment on S. 2288, a bill to reform the Government Printing Office and to solve several very serious problems with the existing system. As then Superintendent of Documents Wayne P. Kelley testified before this very Committee in June 1996, these problems are making the Federal Depository Library Program "an endangered American Institution." Today there is 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 the information created through their tax dollars. Taken together, they make the task before this Committee to strengthen Title 44 this year compelling and urgent.

My statement this morning will focus on three particular areas. First, I will describe the partnership role of federal depository libraries in providing the public--your constituents--with timely, no fee, convenient access to the information they need. Second, I will highlight the challenges and opportunities presented by new technologies, especially the need to recognize the entire life cycle of government information, from creation to preservation. And third, I will discuss erosion of the public's access to government information and the need for compliance by all three branches with the provisions of Title 44.

Part I: Equitable Public Access to Government Information Through Depository Libraries

Public access to government information is a basic right of the American people which we believe the government has an affirmative obligation to provide. From the earliest days of our nation's history, Congress recognized its responsibility to inform the American public of the work of the federal government, and established the Federal Depository Library Program to provide no-fee, geographically-dispersed access to government publications. By designating depository libraries in each state and congressional district, Congress ensured that government information from all three branches would be distributed throughout the country and available at no charge to the user. This system reflected a commitment to broad-based democracy and public accountability--principles that are as important today as they have been in the past. All Americans, whether in rural or urban communities and regardless of their economic status, must have equitable, ready, and timely access to government information. The FDLP meets this goal and is one of the most effective and successful partnerships between the Federal government and the library community.

Today, approximately 1,400 depository libraries located in nearly every congressional district provide expert service in helping your constituents locate and use government information within the constraints of rapidly changing technologies. These libraries invest a significant level of institutional funds for staff, space, and equipment to provide the public with ready, efficient and no-fee access to government information. Moreover, depository libraries are at the forefront in providing access to the broad and growing array of electronic government information products and services--which require a further investment in equipment, software, network development and support, additional technical staff, increased costs for training, and greater service requirements to instruct and assist library users.

Your constituents, whose tax dollars fund the collection and dissemination of information from agencies in all three branches of government, use the resources of their local depository library daily to access needed information. The results of GPO's Biennial Survey reported that in 1995, an estimated 189,000 to 237,000 users each week were provided assistance in locating and using depository materials. These numbers represent people from all walks of life and all levels of experience and technical sophistication. Without the local resources and services provided at depository libraries, many of these requests for government information would go unmet.

Part II: Electronic Access to Government Information--Challenges and Opportunities

Need for a Strong, Centralized, Coordinated Program

We commend the Government Printing Office for the steady progress it has achieved in moving towards a more electronic FDLP. The development of the GPO Access system is laudable in terms of both increased public use and the growing number of electronic information products that are now available at no charge to the user. With the passage of the GPO Electronic Information Access Enhancement Act of 1993 (Public Law 103-40), Congress sought to develop a central access point to information from all three branches of government. Recent usage statistics of the GPO Access system are impressive, as is its expansion to include more than 70 databases. From March 1997 to March 1998, the number of documents downloaded monthly from GPO Access increased significantly from more than 4 million to over 10 million.

With the rapid and pervasive growth of electronic government information, one of the greatest challenges for users is simply identifying and locating the database or source that they need. GPO's Superintendent of Documents Web site provides centralized bibliographic access to government resources in all formats through the online Catalog of Government Publications. In addition, GPO has developed an electronic Pathway Indexer that links users to information resources at over 1,420 other federal agency Web sites and indexes over 202,000 pages.

The assumption by some policy makers that there is no need for central coordination of the Federal Depository Library Program in a distributed electronic environment is simply not valid. In fact, a more electronic FDLP requires greater coordination to bring all participants together on issues such as:

  • standards and guidelines for locator systems to ensure ease of identifying and finding information;

  • preservation and permanent public access;

  • no-fee depository library access to government information, including fee-based products and services in all formats; and,

  • availability of government information in formats that are usable by the public.

The complexities of these issues and the need for central coordination, particularly when many agencies are creating their own Web sites, cannot be underestimated. Depository libraries and users today must deal with a vast and rapidly expanding number of online publishing entities in a distributed electronic system. The administrative burden and inefficiencies of having nearly 1,400 libraries and thousands of citizens contacting each agency individually for materials and support would be enormous. Efficient and effective access to government information can only be achieved through a system of centrally coordinated access and dissemination services. We are pleased that S. 2288 affirms this model and retains the close relationship between Congress and the renamed Government Publications Office by keeping GPO as an independent agency in the Legislative branch.

Need for Preservation and Permanent Public Access

It is critical that Title 44 explicitly recognize the responsibility of the federal government to provide for permanent public access to government information in all formats through a comprehensively coordinated program that includes the Superintendent of Documents, federal agencies, the National Archives and Records Administration, the Library of Congress and other national libraries, depository libraries, and other library partners. We are pleased to see that S. 2288 recognizes the federal government's obligation to future generations and establishes this responsibility within the new Superintendent of Government Publications Access Programs. This is a natural and important extension of the current public dissemination role of the Superintendent of Documents as administrator of the Federal Depository Library Program.

In the print world, this responsibility is being met successfully by the system of Regional depository libraries. As cultural institutions dedicated to public access, libraries are proven and effective partners in providing broad public access to physical collections. Whether these collections contain printed publications or tangible electronic products like CD-ROMs, there are tremendous advantages to having multiple, geographically dispersed collections of government information located around the country for the public to use. We are pleased to see that S. 2288 calls for a distributed system of permanent public access that provides for adequate redundancy and requires official and contractual agreements between participating entities.

The traditional role of the Superintendent of Documents has been to provide permanent public access to print, microfiche, and tangible electronic products through the system of Regional depository libraries. We are pleased that S. 2288 extends this responsibility in the online environment to include ready, permanent public access to remotely accessible electronic products. In the current absence of a coordinated national program to systematically capture, preserve, and maintain ongoing access to electronic government data, important information is lost every day as files come and go from agency Web sites and computer servers. The information becomes inaccessible and thus useless to the American public whose tax dollars have supported its creation. The permanent public access provisions in S. 2288 are necessary to correct the inadequacies in current law and to ensure permanent access to electronic government publications for future generations.

We must also develop mechanisms to ensure the authority and integrity of information available on agency Web sites. Users must be assured that the information they locate is, in fact, official. We are pleased that S. 2288 includes a provision to establish certifying criteria for online government publications to ensure that they are official versions.

In sum, the government must recognize both the challenges and opportunities of the electronic age and assume new roles and responsibilities. The use of new technologies has rapidly changed the way that Congress, government agencies, and the courts create and provide access to information. While these are very exciting times in many ways, our steadfast goal must be to use technology to improve and enhance public access to government information. Without the enactment of S. 2288, we are very concerned that, especially during these transitional years, current models will continue, resulting in a further loss to the public of information created at taxpayer expense. It is imperative that all three branches of government fulfill their responsibilities in making electronic information permanently available to the American public.

Part III: Erosion of Federal Government Information from the Public Domain

Less Access to Less Government Information

On February 27, 1997, Chairman Warner, you articulated your serious concern about "The Growing Crisis in Public Access to Public Information." (143 Congressional Record S1730). As you and Senator Ford noted in your introductory statements regarding S. 2288, increasingly federal agencies are circumventing their obligations under Title 44. The trends toward decentralization, privatization, and commercialization of government information and the increased use of electronic technologies to produce and disseminate information have led to large amounts of government information eluding the primary systems of public access. The result is increased "fugitive" information and reduced public access.

Librarians and users alike are increasingly frustrated by the steady removal of important government resources from the public domain. The information needs of the American public are not served when agencies contract with private publishers and fail to supply these resources to the Superintendent of Documents for distribution to depository libraries. Broad access and use of publicly-funded information are substantially impaired when licensing agreements prevent or curtail redissemination, or when agencies copyright or restrict distribution of information.

These developments have exposed serious flaws in the current laws and policies of the federal government. There is no comprehensive plan to ensure the life cycle of government information in an electronic environment. There is no effective enforcement or compliance mechanism to assure that agencies comply with their responsibilities under Title 44.

Agency Dissemination Initiatives that Circumvent Title 44

To illustrate the problems mentioned above, I'd like to highlight some scenarios that librarians and users have witnessed:

  • Publications that simply disappear from the FDLP because they are no longer published by the government and are now produced by the private sector using government data. A few recent examples are Significant Features of Fiscal Federalism, Handbook of Labor Statistics, and Business Statistics of the United States.

  • Publications that agencies make available for a fee through the Internet but exclude therefore the FDLP. For example, depository libraries can select the National Criminal Justice Reference Service CD-ROM for their collections but have to pay subscription costs for access to the Internet database that contains the actual reports.

  • Publications which have been published by GPO and available to the FDLP in the past, but for which an agency enters into an exclusive contract, such as a Cooperative Research and Development Agreement (CRADA), with a private publisher. Examples of this include: the Journal of the National Cancer Institute (now published by Oxford University Press), the U.S. Industrial Outlook (McGraw Hill), Big Emerging Markets (Bernan) and The Hispanics-Latinos: Diverse People in a Multicultural Society (Philip Morris and the National Association of Hispanic Publications). These titles were subsequently distributed to depository libraries only as a result of strong congressional action.

  • Publications that have been produced in paper for years but now are published only electronically and are not being made available to depository libraries. Sometimes this results when an agency fails to realize that their full responsibilities under Title 44 include the provision of electronic products and services to depository libraries, such as the recent title Community 2020 (CD-ROM). Other cases occur when agencies license proprietary software to use with a product, such as for the NTIS Order Now CD-ROM, and there is no agreement on how the licensing fee for depository access should be recovered.

  • Another scenario is when agency CD-ROMs or Web sites are available to depository libraries, but their use is restricted to only one password that must serve the needs of thousands of people in the congressional district. The Department of Commerce's STAT-USA is an example of an information service created by an agency that operates under a cost-recovery mandate. Depository libraries are limited to one password to STAT-USA, a valuable database that contains literally thousands of titles that are no longer available in print. Institutions that need to network this product to provide adequate access to their users must pay for additional passwords.

  • Finally some agencies, such as the National Technical Information Service (NTIS), currently do not provide access to their databases for no-fee use in depository libraries. We believe that this information, created at taxpayer expense, rightfully belongs in the Federal Depository Library Program.

Compliance with Title 44 Needed Now

The library community has long maintained that there should be a strong enforcement mechanism and appropriate penalties for agencies that fail to comply with the provisions of Title 44. Government information created at taxpayer expense should remain in the public domain and be permanently available at no fee through depository libraries. The Superintendent of Documents has had no effective means for enforcing the FDLP provisions of Title 44 to ensure public access. OMB's Office of Information and Regulatory Affairs (OIRA), while responsible for developing information policy for executive branch agencies, has lacked the resources to ensure agency compliance with Title 44.

While the strongest incentive for an agency to disseminate information is to inform the taxpayer of the vital work which the agency performs, dissemination of information is rarely an explicit part of an agency's mission. There should be a balance between incentives and enforcement to ensure agency participation and compliance so that information created at taxpayer expense remains in the public domain and permanently available. We in the library community share the deep concern of members of Congress over the general lack of agency compliance with Title 44 and the negative impact this has on the public's ability to access government information. We are pleased to see that S. 2288 addresses this problem by providing both incentives and strong enforcement measures to ensure that agencies in all three branches of government will meet their obligations under Title 44.

Summary and Conclusion:

Chairman Warner and Senator Ford, thank you for the opportunity to appear before the Committee this morning on behalf of our national library associations. Our members are in the unique position of being able to speak for the millions of Americans who each year visit their local depository libraries to find government information. Because of the increasingly complex maze of electronic government information, depository libraries are more valuable than ever before in meeting the needs of the public.

Allow me to summarize for you and the members of this Committee the major issues addressed in our testimony today that make enactment of S. 2288 so critically important for the American public: First, the Federal Depository Library Program is the most efficient system to provide the American public with government information, and libraries provide the national technological infrastructure that is necessary in the electronic age.

Second, there is a strong need for a central, coordinating authority whose functions should include the development of much-needed finding tools, and the preservation and permanent public access of government information.

And third, some agencies currently do not fulfill their responsibilities under Title 44, thereby depriving Americans of information created at taxpayer expense.

The movement towards a "cybergovernment" is replete with new challenges and opportunities. Congress, the Administration, and the courts should use electronic technologies to enhance the public's access to government publications, not to diminish it. The channels of public access to government publications must remain open, efficient, and technologically relevant. Libraries and your constituents are doing their part by investing in technologies to assist them in accessing electronic information. The federal government must fulfill its part of the partnership by establishing a framework that will remain vital and relevant in the 21st century, by investing in systems and services that provide the public with government publications in all formats, and by assuring that valuable government information created today will be preserved for future generations.

We believe that S. 2288 provides this important framework and that its enactment is necessary to recommit all three branches of government to the long-standing principles of public access to government publications. The enactment of S. 2288 will ensure that the Federal Depository Library Program--the new Federal Access Library Program--will continue to serve the government information needs of the American public and will not become an "endangered American Institution." We would like to extend our appreciation to Mr. Eric Peterson and Ms. Kennie Gill for their invaluable contributions in developing this important legislation and for their willingness to work closely with the library community. Thank you again, Chairman Warner and Senator Ford, for your personal commitment to the reform of Title 44 this year and for the opportunity to appear before you this morning.