James A. Jacobs (l.), James R. Jacobs (r.)

Today, access to born-digital federal government information is relatively easy. Most of it is even available for free. But there are few legal guarantees to ensure that the information published today will be available tomorrow. Now, the GPO Reform Act of 2018 about to be introduced in Congress, pitched as a modernization of the Government Publishing Office (GPO) and the Federal Depository Library Program (FDLP), will actually endanger long-term free public access to government information. Our current access depends on the benevolence of government agencies. No government agency is required to provide free access to its information. Most, including GPO, operate under laws that allow or require them to charge fees. The few requirements currently in place to preserve information do not require free online access. While Congress and most executive agencies have welcomed the ability to share their work with the public, there are repeated threats to long-term free access to it. These include political demands for cost recovery, private sector demands for the government to “stop competing” with it, and budgetary constraints. The biggest threat to long-term free access to digital government information is relying on the government alone to provide that access. Doing so puts access at the mercy of politicians and political appointees whose agendas do not always align with openness or transparency. Indeed, political control of information in the last year has set off new alarms among librarians, researchers, journalists, and historians. Public information has been altered, moved, and removed from government websites, as Coral Davenport notes in her New York Times article, “How Much has ‘Climate Change’ Been Scrubbed From Federal Websites? A Lot.” Changes are needed to correct these problems, but the current draft bill does not do so. The Act will replace the parts of Title 44 of the U.S. Code that define the roles of GPO and the FDLP and have guaranteed long-term free public access to government information through collaboration between GPO and FDLP libraries. To deal with the burgeoning production of digital government information, a new section was added to that law in 1993 giving GPO the authority to operate a digital library. GPO took its responsibility seriously and built and expanded its digital services. But GPO also read the law as giving it sole responsibility for digital access and created policies that excluded almost all digital content from being deposited into depository libraries. Back in 1993, many libraries accepted this model. Libraries were not prepared to take on digital preservation, build digital collections, or create digital services. Most FDLP libraries were happy for someone else to shoulder the responsibility. But the law is out of date. In 1993 some government agencies were still using dial-up bulletin boards. The web was in its infancy and no one knew what it would become. The Internet Archive, HathiTrust, and the Digital Public Library of America did not yet exist. Excite was the big search engine. The 1993 law allows GPO to charge fees (and it did so until libraries created gateways that made this same information available without charge). It does not require digital preservation. It defines a very narrow scope for GPO’s digital library. It says nothing about the privacy of users. Worst of all, GPO’s interpretation of the law as giving it sole responsibility for digital access took control of government information out of the hands of libraries and put that control, and the responsibility for its preservation, into the hands of GPO. This new bill corrects some of these flaws but falls far short of bringing the law up to date. It requires GPO to protect the privacy of users from government snooping, but not from commercial intrusion. It requires executive agencies to give some of their digital content to GPO, but it fails to address the 35-year-old legal precedent that says GPO does not have the authority to do so. And it takes GPO’s old model that limits FDLP libraries to non-digital content and writes those policies into law. What’s worse, the February 22 draft of the bill threatens to privatize congressional publishing. This could, according to GPO, “increase the risk that congressional publications will not be captured for inclusion in the FDLP” and could result in GPO losing so much revenue that it would not have enough “to sustain the agency.”

TIME FOR A 21ST-CENTURY FDLP

Although this sounds bleak, there is some good news. Minor changes to the existing text of the bill could modernize the law to define a collaborative digital FDLP in which libraries and GPO work together on the complex issues of digital collections, services, and preservation (see James A. Jacobs and James R. Jacobs, “Suggestions for Revisions to Chapter 5 of the Title 44 Bill”). It is time for a 21st-century FDLP. Librarians today understand the political, financial, and technical risks of putting all our government information eggs into one politically controlled basket. Many libraries are building digital collections and services. There are solid resource-sharing models among digital libraries. GPO acknowledges that it needs partners. And, perhaps most important, FDLP libraries can do things that GPO cannot; they have fewer constraints than GPO does in collecting publicly available agency information. In fact, the End of Term Web Archive and Data Refuge project have been doing just that. This legislation is not just an issue for FDLP libraries. Government information is an essential component of the library ecosystem. For more than 200 years, a small community of libraries has provided this service. This is the opportunity for all libraries, large and small, to engage and save government information provision for the future. Tell the Congressional Committee on House Administration and the ALA Washington Office to modernize and energize the digital provision and preservation of government information.

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James A. Jacobs is Data Librarian Emeritus, University of California San Diego; James R. Jacobs, is U.S. Government Information Librarian, Stanford University, CA.