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

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FEDERAL PUBLISHERS COMMITTEE
The Wendell H. Ford Government Publications Reform Act of 1998--A Dream or a Nightmare?

The Library Perspective, by Mary Alice Baish
American Association of Law Libraries
September 23, 1998 

I am very pleased to be here with you this morning 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 the bill that we have been discussing this morning, S. 2288.

I hope that everyone has picked up a copy of the IAWG Issue Brief dated July 29, 1998 that summarizes the testimony of the library community at that day's hearing before the Senate Rules and Administration Committee. The IAWG strongly supports this legislation and urges its enactment this year. Our testimony in July was the culmination of a long process that began a year and a half ago when we drafted the following three goals for the reform of Title 44:  

GOAL 1: The law must broaden, strengthen, and enhance public access to all forms of government information.
 
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.

We believe that S. 2288 meets all of our goals,

First, by increasing the visibility of the Superintendent of Documents by making this a new presidentially-appointed position;

Second, 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 renames Federal Depository Libraries as Federal Publications Access Libraries.

And third, by explicitly expanding the scope of the FDLP to include publications in all formats from all three branches of government, and by recognizing the challenges and opportunities of electronic information technologies.

I'm certain that everybody in this room agrees with the democratic principle that public access to government information is a basic right of the American people that the government has an affirmative obligation to provide. I'm equally certain that we would all agree that 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 they need. We in the library community believe that the need to reform Title 44 this year to address these issues is compelling and urgent.

Bob Mankser, Deputy Director of the Government Printing Office (GPO), has just provided us with the GPO perspective on this legislation. And John Weiner, Director of the National Energy Information Center, Energy Information Administration, has enlightened us on what he perceives may be some problems in implementing this legislation from the agency perspective. I would like to address this morning a few of the major concerns that have been raised regarding S. 2288, and respond to them from the library perspective.

The Need for Centralization

Allow me to quote from the opening remarks of Sen. Wendell Ford (D-KY), Ranking Minority Member of the Senate Rules and Administration Committee, in whose honor this legislation is named, at the hearing held on September 16, 1998. Sen. Ford's comments are in direct response to those opponents of the bill who believe that S. 2288 is counter to the decentralized procurement system authorized in the Clinger-Cohen Act.  

"My experience of nearly 24 years is that a decentralized print procurement system leads to "fugitive" documents and a significant loss of access for the public. While a decentralized procurement system may work for the purchase of telephones, computers, desks, and the like, it is simply not appropriate for the production or procurement of government information. Unlike the purchase of a chair, which is complete when delivered, printing is only the first step in the creation of government information. The second step is dissemination, and without dissemination, the ink-on-paper alone is meaningless. For over 130 years, the centralized printing requirements of title 44 have provided an ironclad assurance that what is printed gets into the hands of the public through the depository libraries. I am not yet convinced that a decentralized system can provide that same assurance."

The biggest loophole in current Title 44, as we all know, is that some agencies simply do not comply with current law regarding their responsibilities under chapter 19 to disseminate their publications through the FDLP. S. 2288 would close these loopholes by requiring that an agency get a delegation of authority from the Administrator of the Government Publications Office if they wish to procure or produce publications outside of GPO. Under such a delegation of authority, the agency must notify the Superintendent so that the requisite number of copies are included in the procurement order for distribution to the Federal publications access libraries. These provisions will go a long way towards decreasing the number of "fugitive" documents.

The Need for Strong Enforcement

We librarians have long complained that there is no real enforcement in current Title 44, and this bill adds much-needed "teeth." It also offers the same incentives to agencies as are currently in Title 44: when an agency uses GPO or properly notifies the Superintendent so that FDLP copies of tangible materials are included in a procurement order, the publications are paid for at the incremental cost through the Superintendent's Salaries and Expenses account.

Agencies will have the flexibility to request a delegation of authority under provisions of S. 2288. However, if under this delegation of authority, procurement is not accompanied with notification so that the publication can be made available through the access libraries, the Superintendent will be authorized to republish the publication and to be reimbursed directly from a special account in the agency's budget. Since this is certainly not a cost-effective means for an agency to comply with the dissemination requirements of chapter 19, we believe that it is a strong enforcement mechanism that hopefully will need to be used only on a minimal basis.

The Need for Notification for Online Publications

There has been much misguided opposition from several quarters--including federal agencies--that the notification requirements both for tangible products and for online publications are burdensome. I would like to clarify what S. 2288 actually would require since some opponents are saying that S. 2288 gives the new GPO "control" over procurement and gives the Superintendent "control" over dissemination. What the bill does, rather, is to respond to the needs for improved public access by setting up a transparent mechanism to retain the link between the procurement or production of tangible products and their dissemination.

Many agency officials have stated that the notification requirements to the Superintendent for agency Web publications are burdensome. They seem to believe that they need to get some sort of "permission" from the Superintendent before they can post a publication to their agency's Web site This is simply not so, either in the statutory language or in the intent of the notification provisions for Web-based publications. The purpose of the notification to the Superintendent for agency Web publications is two-fold: first, so that these materials can be cataloged or added to GPO's locator services, allowing the public to locate them more easily; and second, for permanent public access, so that if an agency decides to remove a database or a publication from their Web site, that database or publication can be captured and preserved. Which brings me to the next important issue,

The Need for the Permanent Public Access of Electronic Publications

One of the frustrations of librarians and users 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. The challenge of permanent public access to online materials is addressed in S. 2288 by making 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 ( NARA).

NARA has in fact raised some concerns about the permanent public access provisions of the bill, stating that it impinges on their own mission to preserve federal records. However, NARA has testified in the past that they would not welcome any responsibility for the permanent public access of electronic publications. The legislative solution in S. 2288 to address this important issue are the provisions creating a two-year permanent public access committee that includes representatives from 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. The committee's role is one of cooperation and coordination to develop sound plans for a government-wide solution for the permanent public access of electronic publications and to report back to Congress whether further legislation is needed to achieve this goal.

The Need for Participation from the Federal Judiciary

Senator Ford stated it best in his opening remarks at the September 16th hearing when he said that:  

"We have been after the courts for some time now to be more forth coming in making their opinions available to the public. The bill before the committee strives to ensure that all government information is made available to the American public who pay to produce it. The Judicial branch is no less a part of that Federal government than are the Executive or Legislative branches, and the public's access to the decisions of the courts is just as important to the preservation of democracy as is their access to the decisions of Congress or the Executive."

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. Robert Oakley, Director of the Law Library at Georgetown University Law Center, and I have been working with Senate Rules and Joint Committee on Printing staff to reach consensus with the Administrative Office of the U.S. Courts on the provisions of S. 2288 regarding access to Federal court opinions.

Last, The Need to Reduce In-House Agency Printing

When the provisions to reduce in-house agency printing over a five-year period were initially written into the bill, my understanding is that it was done at the request of the Office of Management and Budget. The production of government publications on docutext machines is a big source of "fugitive" documents. There is much opposition to these provisions, however, from companies such as Xerox who sell expensive duplicating machines to federal agencies. Nobody within government actually knows the full extent of materials produced by agencies in-house, nor the amount of agency funds spent on the purchase of these costly duplicating machines or the service contracts needed to maintain them. There has never been a definitive survey to determine these figures, but this practice is a barrier to public access resulting in "fugitive" publications that are not distributed to depository libraries. For that reason, the library community fully supports these provisions.

Conclusion

There have been three hearings on S. 2288 since its introduction on July 10, 1998, and mark-up is expected any day. What are the chances of getting this legislation enacted this year? We remain hopeful despite the fact that there are few days left in the 105th Congress and passage of the appropriations bills is a big priority. Nonetheless we believe that the enactment of S. 2288 this year is critically important to the future of the Government Printing Office and to the American public's right to access government publications in all formats through the Federal Depository Library Program. Thank you very much.