Title 44 and the Uncertain Future of Free Public Access to Government Info in the US

rachel2This post comes to us from Rachel Mattson, the lead organizer of the DLF interest group on Government Records Transparency and Accountability. Rachel works in the Archives of La MaMa Experimental Theatre Club and is a member of the XFR Collective

Update: read the letter DLF sent to Congress and the GPO’s Depository Library Council based on these principles. 

I don’t know how to say this without sounding alarmist, but it appears that the legal right to free access to government information in the US is currently hanging by a thread. That thread is a short bit of text, contained in Chapter 19 of Title 44 of the US Code, that affirmatively guarantees free public access to (some) government information. Now, there are forces gathering to change the law and it is not clear if free access will survive those changes.

I had never heard of Title 44 (much less its 19th chapter) until this past July, when a few tweets about it appeared in my timeline. The possible effects of a badly reformed Title 44 seemed too weird and horrible to be true, even in a time full of weird and horrible news. But the alert came from the most reliable of sources—the smart folks of freegovinfo.info. So my colleague Brandon Locke and I decided to invite Jim Jacobs (Librarian Emeritus, University of California San Diego and co-founder of freegovinfo.info) to speak at the August meeting of the DLF’s interest group on Government Records Transparency and Accountability. What we learned from Jacobs’ presentation was chilling.

We neglected to record Jacobs’ presentation the first time through—but the presentation felt so urgent that we decided to invite Jacobs to record his comments for broader distribution. That recording is now available here. (It is also available via our wiki.) Key take-aways include:

  • Title 44 contains the only legal guarantee that the federal government will provide its public information for free to the General Public, in the text of its Chapter 19.
  • Although Chapter 19 of Title 44 is known for having established the Federal Depository Library Program (or FDLP), it also contains the only text in federal law that guarantees free public access to government information, which indicates that government publications deposited by GPO into specially designated Federal Government Depository Libraries libraries *must* be made freely available to the general public.
  • Chapter 41 of Title 44 established GPO’s online public access portal (currently known as govinfo.gov). Although current GPO *policy* is to make the portal available for free, the *law* specifically allows GPO to charge for access to it if it wants to.
  • GPO has announced that it will seek changes to Title 44 in the very near future.
  • Knowledgeable people believe that the House Committee on Administration may draft a bill to “reform” Title 44 this month.
  • There is currently no publicly available draft of this bill but at hearings, the members of the House Committee on Administration seem more interested in saving money than in improving access to born-digital information.
  • In actual fact, parts of the law are out of date, and do not deal adequately with the needs of born-digital information. Because of this, the GPO has found it legally possible to refuse to deposit digital documents with FDLP libraries. Additionally, the law does not require GPO to preserve the digital information in its digital storage facility.
  • If we are vigilant and vocal and active, we could actually *improve* the law so that it mandates and enables long-term preservation of digital government information, and strengthens the legal guarantee of free public access to government information.
  • Longtime government info librarians are urging that any changes to the law adhere to the following 4 principles:
    • The law should ensure the privacy of users of government info
    • The law should address the long-term preservation challenges posed by born-digital government information.
    • The law should protect free access and free use.
    • The law should modernize the scope of government information covered by chapter 19 for the digital age.

There’s lots more information in Jacobs’ presentation, which is well worth listening to.

If you wish to take action to support a robust legal infrastructure for free public access to government info in the US:

  • Sign freegovinfo.info’s petition to the House Committee on Administration and to GPO; and/or
  • Write a letter—or urge your library’s director—to write a letter to the House Committee on Administration. (To help you do that, freegovinfo.info has posted a letter written by Stanford University’s Michael Keller which it invites anyone to use as a model; a letter from the Digital Library Federation will go out this week.)

If you’d like to stay informed about ongoing developments, join the Government Records Transparency Google Group, or follow the DLF on twitter (@CLIRDLF). We’ll continue to send out updates as needed.

A quick note of thanks: to Jim Jacobs, for delivering his presentation twice; to Brandon Locke, whose idea it was in the first place to invite Jacobs to present at our August meeting; to Justin Schell, Katherine Kim, and Bethany Nowviskie, who helped coordinate the recording session; and to all the folks who attended our August meeting for their thoughtful questions and participation.

More info:

Lisa Peet, GPO Requests Recommendations to Update Federal Deposit Library Rules, Library Journal (August 20, 2017)

Posts on freegovinfo.info:

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