Government Information in Canada/Information gouvernementale au
Canada, Number/Numéro 18 (August 1999)
Threats to Public Access to Federal Government Publications in Canada and
the United States
by Katherine Prophet
Proposal for a Revised Model Depository System
The Depository Services Remodelling Committee, chaired by Vivienne Monty, drafted a proposal to reshape and strengthen the Depository Services Program. The Internet, along with digitization of information and the need to reinforce and "rationalize" the current system precipitated this re-examination. Entitled Proposal for a Revised Model Depository System, the committee's proposal attempts to formulate "the most effective delivery system for the 21st Century." (92)
They aimed to accomplish the following goals:
The committee's recommendations included classifying the depository libraries into three groups: resource, regional, and local libraries. The local libraries would be the equivalent of today's selective depositories. The role of the resource and regional libraries would be the same as that of the current full depositories, but, in addition, the resource libraries would fulfill expanded duties. They would serve as mirror sites for public data to enhance access speed. Mirror sites maintain exact copies of data originating at another location; the material is on their hard disks.
The committee "anticipates" resource libraries would participate in data preservation and archiving. Discussion of methodology for long-term archiving and preservation is deferred until further consultations with other stakeholders like the National Library of Canada and the DSP, but the Remodelling Committee has clearly stated that this critical issue should be addressed.
By proposing that resource libraries function as mirror sites and that they play a part in archiving and preservation functions, the committee has redefined depository libraries, giving them a more active, hands-on role in the access process. As mirror sites, they are not merely accessing a government site, they are a site. As players in the archiving and preservation of data, they acquire some control over the data. The concept of resource libraries gives depository libraries more power to influence the flow of government information in the electronic environment; it makes them more than Internet conduits.
The proposal reaffirms basic responsibilities for the DSP and the government, shoring up and reiterating the underpinnings that create a functioning system. It also pushes for a more definitive legal basis for the program. It states that the DSP should commit to a "comprehensive and constant flow of publications (paper and alternate formats). The Program will undertake, on behalf of the government, to secure appropriate quantities, or access, in a timely fashion. The LAC recommends that the Federal Communications Policy be reviewed to provide a firm legislative basis for the Programs." (94)
Other DSP responsibilities highlighted by the proposal are timeliness of delivery, indexing and bibliographic access, retention guidelines, and library training and support programs. The concerns stated in the EPP and Dolan-Vaughn survey are clearly reflected here. The LAC (Library Advisory Committee) envisions that the DSP will establish effective lines of communication, linking libraries with other primary stakeholders. Delivery mechanisms should be appraised for suitability and a strong DSP infrastructure should be assured. The proposal is just that, a proposal, but it focuses attention on positive, proactive solutions to assure the health of the DSP, the functioning and relevance of depository libraries, and the fulfillment of the ideal they serve--public access to government information.
The Perspective from the United States
Privatization
The same threats to government information access--privatization, commercialization, decentralization, and electronic technology issues--exist in the United States and form the focus of discussion and legislative initiatives. The debate surrounding access has particularly targeted the dilemmas posed by electronic technology and privatization.
The Librarians' Manifesto, written in 1993, outlined librarians' concerns generated by the privatization issue. These concerns included possible problems with product continuity due to private-sector instability, private proprietary control over information, high fees, and the potential development of only high-use, profitable information, resulting in no dissemination for low-use information. (95)
In the U.S.A., the Government Printing Office (GPO) and the National Technical Information Service (NTIS) are both government publishers. The GPO is charged with distributing documents to the federal depository libraries, providing bibliographic control and securing copies of information products that emanate from other agencies and departments. Under federal law, any government publication produced with government funds must be offered to the GPO for inclusion in the Federal Depository Library Program (FDLP). By contrast, NTIS offers its publications, which incorporate scientific, technical, and engineering titles, for purchase.
There have been allegations that NTIS prices for its products and services are inappropriately high. (96) In addition, there is concern that NTIS publications might not enter the FDLP stream. For example, in 1995 Bernan Press and NTIS published The Big Emerging Markets as a joint venture. Public Printer Michael F. DiMario wrote to the Secretary of Commerce to report that the GPO had not been supplied with copies of the BEM for the depository library program. (97) The BEM incident highlights the interagency strife surrounding NTIS documents and underlines that even within the US federal government, there exists no consensus on the enforcement of Title 44.
Wayne P. Kelley, Superintendent of Documents from 1991 to 1997, discussed the problems posed by privatization of government information in his consideration of two recently privatized publications: U.S. Industrial Outlook and The Journal of the National Cancer Institute. He maintains that federal information policy is undergoing a transformation due to public-private collaboration and that this "reinvention" is evolving on a case-by-case basis. (98)
No legislation has been introduced to allow executive branch agencies to privatize information they produce, which is paid for by taxpayer dollars. Such information has traditionally been made available directly to some individuals, like farmers, and to educators, businesspeople, and others either free through the depository library program or at reasonable cost through the document sales program, both under the U.S. Government Printing Office (GPO). ...
There has been no debate on the new policy. ...As superintendent of documents for six years (1991-97) I had a unique opportunity to observe government publishing. What I saw was a growing trend toward the transfer of federal information from the public domain to private ownership. (99)
He asserts that government agencies are limiting public access with "exclusive or restrictive distribution arrangements," (100) through fees or royalties imposed on information reuse or redistribution and by the transfer of ownership or copyright to private sector publishers. (101)
Published for thirty-five years by the Commerce Department, the U.S. Industrial Outlook provided an overview of the nation's economy on an industry-by-industry basis. In 1995 publication was suspended, and in 1997, the new U.S. Industry & Trade Outlook '98, a joint venture with McGraw-Hill, appeared. Federal employees wrote two-thirds of its 50 chapters, with McGraw-Hill and its contractors supplying the rest. All underlying economic forecasts were declared to be jointly developed. The Industrial Outlook was not copyrighted, which permitted reprinting or copying without permission. With the new Outlook '98, McGraw-Hill holds the copyright to all its contributions to the book. Kelley argues, "How is the public served when many of the industry outlooks have been removed from the public domain and are now owned by a private publisher?" (102) Kelley indicates that the issue of accountability is a problem; McGraw-Hill states in a disclaimer that it does not guarantee information accuracy.
The Paperwork Reduction Act of 1995 (Public Law 104 -13) and the Office of Management and Budget (OMB) guidelines stipulate that federal agencies must avoid publishing practices that "interfere with the availability of information dissemination products on a timely and equitable basis." (103) Kelley cites the gap between Outlook publication in 1995 and the new Outlook '98 as a breach of "timeliness." He further asserts that the joint collaboration, arranged by the NTIS, made McGraw-Hill the "'exclusive' publisher of a high-profile government document." (104) He also points out that "important aspects of the agreement signed by NTIS and McGraw-Hill in May 1996 remain secret." (105) When the document was obtained under the Freedom of Information Act, the section outlining revenue division was blank, as were the sections indicating the agreement length and products McGraw-Hill was to supply. While it is legal and not unusual to find such blanks to protect proprietary or competitive information, the Outlook contract underscores a "critical information policy dilemma." (106)
The National Cancer Institute transferred ownership of The Journal of the National Cancer Institute to Oxford Press in 1997. The institute also agreed to let Oxford use its name; therefore, the publication's name continues to be The Journal of the National Cancer Institute. The entire twenty-six member magazine staff, made up of government employees, will work for Oxford for up to five years, paid by the government.
Because of copyright issues, Kelley argues that in this deal, "the public lost big on the issue of free access to information." (107) For 50 years NCI had required all authors published in the journal to assign copyright to the U.S. government. Most of these authors were nongovernment researchers, and by transferring copyright to the government, their text could be freely copied. As the new owner of the journal, "Oxford now holds copyright to all nongovernment articles." (108)
Stressing that "there is no one at the bargaining table representing free public access," (109) Kelley warns:
Government agencies entering into agreements with private publishers create the opportunity for serious conflicts of interest, particularly if details of the agreement are secret. Agencies granting use of their names for commercial purposes undermine their own credibility. (110)
He continues with the observation that agencies like the U.S. Department of Commerce use revenues from bestsellers to support less popular publications. If the bestsellers are privatized, the future of publications selling less than 100 copies will be in doubt. He foresees that "...government activities will shift from serving public needs to concentrating on market needs." (111) He concludes by stating that privatization of government information is dangerous.
Francis Buckley, the current Superintendent of Documents, and the first librarian to hold that position, also asserts that he is "very uncomfortable" (112) with privatization. He asserts that taxpayer funded information belongs to the public. "From the government documents librarian's perspective (and library associations') anytime there is a significant amount of government involvement, [the publication] should be made available." (113) This access could be provided through the depository library system or the low-cost GPO sales program. If the private sector, working with a government agency, does produce a value-added product with additional information or new indexing, then the Joint Committee on Printing should negotiate a deal to assure copies for the depository libraries. (114) Buckley points out that under the current Title 44, joint public-private publication is exempted from the FDLP.
Electronic Access
Title 44 presents another loophole. Librarians assert that all federal government publications, including documents in electronic formats, are covered under Title 44 U.S.C. 1902. They maintain that the phrase "individual document" used to define a government document in U.S.C. 1901 includes documents in electronic format. (115) "That is, Title 44 contained the phrase 'individual document' only because the statute was passed when virtually all federal information was printed on paper. The intent of the statute is to get 'informational matter' to the public--regardless of format." (116)
The OMB took quite a different view. It argues that 1901 encompasses only print documents and does not apply to electronic information. Following this interpretation, agencies are not required to submit electronic products to the GPO for distribution to depository libraries. Agency compliance is hence voluntary and, moreover, subject to budgetary considerations.
Hernon and Dugan point out that, in the U.S. as in Canada,
being a
depository library can be expensive in the electronic age. (117) The GPO recommends that depository libraries have work stations with at least the following configuration:
Stephanie Ford also examines the demands placed on depository libraries. She writes, "The introduction of electronic information into the GPO's depository program presents opportunities as well as challenges to regional depository libraries. However, a large burden is being placed on regional depository libraries as they try to provide effective and efficient access to these products." (119) Congruent with the Canadian experience, Ford's study concludes that "adequate staffing and resources, however, remain a problem for some." (120)
In her 1996 testimony before a House subcommittee, Betty J. Turock, then president of the ALA, mirrored Canadian concerns highlighted in the Dolan-Vaughn and EPP studies. Discussing The Electronic Federal Depository Library--Transition Plan, she states:
The Plan assumes depositories will be able to access, download, and print extensive documents and charge users to recover the cost of printing information accessed electronically. It is one thing for libraries to charge for some copying in a multi-format program, but it is much more serious in an all-electronic program, where long documents may need to be printed to be used effectively. Is the cost of printing to be shifted from the federal government to congressional constituents and libraries? Are already financially strapped libraries to assume the costs of printing millions of pages of government information? Some might call this an "unfunded mandate." (121)
She expresses the "major concern" that the "rapid transition to a nearly all electronic FDLP will be viewed by policy makers not in terms of increased public access but as a way to reduce costs to the federal government. ...We reiterate our belief that federal information policy decisions should not be based on reducing costs to the federal government." (122) She pinpoints the same cost recovery trend found in the Canadian system.
Discussing resource issues comparable to those found in the EPP, Turock asserts, "We need time and resources to equip our staffs with skills and tools appropriate to the information-age work they are doing. We need resources to purchase the costly but essential reference tools and software systems, often produced by the private sector, that render federal information accessible and useful." (123)
S. 2288
The Wendell H. Ford Government Publications Reform Act of 1998, Senate Bill 2288, was an attempt to reform and strengthen Title 44 and meet head-on the current threats to the depository library system. It would have improved the FDLP. (124) As Barbara J. Ford, a past ALA president, testified: "We in the library community have long noted that Title 44 doesn't have 'teeth' to back it up; this bill gives Title 44 'teeth.'" (125) It addressed the issues generated by privatization, decentralization, electronic dissemination, and cost recovery.
The Inter-Association Work Group (IAWG) vigorously supported and lobbied for the passage of S. 2288. The group was comprised of representatives from six library associations: the American Library Association (ALA), the American Association of Law Libraries (AALL), the Association of Research Libraries (ARL), the Chief Officers of State Libraries (COSLA), the Medical Library Association (MLA), the SLA (Special Libraries Association (SLA), and the Urban Libraries Council (ULC). The IAWG stated that its goals in the amending of Title 44 were to:
S. 2288 aimed to fulfill the first goal by legislating the following measures:
The second goal was met by provisions strengthening the power of the Superintendent. Among these measures was the establishment of a notification system so the Superintendent would know about and could identify publications for inclusion in the program. It also proposed "strong enforcement mechanisms," (128) the "teeth" that Barbara Ford cited, and made the Superintendent responsible for a government-wide locator system.
To fulfill goal three, proposals included giving the Superintendent the responsibility of a permanent public access system for all government branches. This system was to ensure "adequate redundancy and requires official and contractual agreements among participants." (129)
In their statements before the Senate Committee on Rules and Administration, representatives from IAWG explained the issues addressed by the Title 44 revisions and the necessity for reform. S. 2288 attempted to address the decentralization that has led to the problem of "fugitive" documents, i.e. those documents not in the depository program. A fugitive publication is not catalogued, and consequently the public doesn't know of its existence. It is not distributed to the depository libraries so it is inaccessible, and it is not archived in the system, so potential future users can't access it either.
As Barbara Ford noted:
The personal experience of librarians in states and localities with decentralized printing and publishing programs attests to the difficulties in acquiring government publications in a decentralized environment. I am concerned that a similar decentralization in the federal government would greatly diminish the amount of information flowing through depository libraries, and would result in increased costs and less efficiency for all participants. (130)
Daniel O'Mahony, Chair of the IAWG, concurred:
Public access to government publications will deteriorate if the production and procurement of tangible publications is decentralized because the tendency of most agency publishers and printers is to focus on their immediate agency clientele and not on the other users of government publications. ... The overwhelming proportion of "fugitive" documents results from agencies that have ignored their Title 44 responsibilities and bypassed GPO to procure or produce publications on their own. (131)
In his response, Robert Oakley, representing the ALL, stated that the public's right to access is compromised when agencies adopt a decentralized model like NTIS and the Federal courts. He noted that NTIS scientific and business publications are not made available and that only Supreme Court decisions are accessible through the FDLP. He argued that "these models of decentralized production and procurement--and the resulting loss of public access--demonstrate the need for central coordination for the production and procurement of tangible government publications." (132)
Describing the dangers of privatization, Barbara Ford cited the copyright or "copyright-like" restrictions on government agency publications produced under exclusive arrangements with the private sector. She also noted the growing trend of agencies' citing Title 44 USC1903 that allows publications to be excluded from the depository program if they are cooperative publications. (133)
She also attacked commercialization of government information: "Increasingly agencies tend to see publishing as a money making endeavor for their own agency instead of a means for informing and educating the public."
S. 2288 addressed problems engendered by electronic access. In particular, it sought remedies for the issues surrounding permanent access to electronic documents, a problem also addressed in Canada's model depository system. As Daniel O'Mahony stated, "...it establishes the affirmative responsibility of the federal government to preserve and provide permanent and continuous access to all its publications--those in electronic and traditional print formats. In my view, Mr. Chairman, this is one of the most important achievements of this bill." (134)
Observing that present law does not ensure public access to government information, O'Mahony continues:
These problems have been compounded in recent years by the migration of increasing amounts of government publications to electronic formats. The current law does not recognize the federal government's responsibility to provide continuous and permanent public access to electronic government publications, nor does it empower the Superintendent with the authority to ensure comprehensive coverage government-wide. (135)
The bill sought to remedy the "fugitive" status of many electronic documents and the difficulty of locating them on the Web. Barbara Ford observed that as agencies moved to disseminate information electronically, they often neglected to notify the FDLP. (136) O'Mahony stressed that this notification provision would enable the Superintendent to identify online publications and then provide locator services. (137) He asserted:
...this service is desperately needed. Currently it is very confusing and frustrating for librarians and the public trying to find government publications on the Web. Commercial Web search services...do not provide the level of specificity or bibliographic control necessary to identify and locate official electronic government publications on the Web. (138)
The IAWG urged that the Wendell H. Ford Act be enacted immediately to close the existing legal loopholes, but the bill was defeated in October, 1998. The IAWG reported:
Conclusion
It is apparent that librarians in the United States and Canada are facing the same challenges to equitable and free public access to government information. In spite of the differences that exist in each country's legal structures and institutions, librarians can benefit from identification of common threats and from knowledge of colleagues' experiences on the other side of the border.
All librarians concerned about the status of government information could agree with this declaration by Betty Turock:
Francis Buckley aptly expressed the importance of government information: "From birth to death, jobs, food, clothing, everything is affected by government." (141) This is why public access is well worth the fight in both countries.
Republican members of Congress, spurred on primarily by Xerox and other information technology and private publishing groups, defeated efforts to enact S. 2288...
Opposition to S. 2288 was led primarily by Xerox Corporation, R.R. Donnelly, Litton PRC, and other information technology and private publishing firms who profit by the notion that the current Title 44 is unenforceable. In the end, many Members of the 105th Congress placed the private interests of a few large corporations over the broader rights of the American public to access government information paid for at taxpayer expense. (139)
There is a powerful force at the core of all the work librarians do--as selectors, organizers, archivists, teachers and marketers of ideas and information. Our users are smart. Their information needs are real, important, and diverse. The wisest investment our nation can make is to construct and maintain information access ramps into and out of our federal government. (140)