Testimony of Gary Ruskin,
Director of the Congressional Accountability Project,
Before the Committee on Rules and Administration,
United States Senate,
Hearing on S. 2288,
the Wendell H. Ford Government Publications Reform Act of 1998,
July 29, 1998.

Thank you for allowing the Congressional Accountability Project to submit this testimony to the Committee on Rules and Administration's hearing on S. 2288, the Wendell H. Ford Government Publications Reform Act of 1998.

This bill is intended to "reform" Title 44 of the U.S. Code, which governs the distribution of government information to the public. The bill is a great disappointment. Though it rings with lofty rhetoric, it would do little to help citizens obtain the most important federal government documents. In fact, some sections of the bill could make it harder for citizens to gain access to the written work product of their federal government. The disjuncture between the bill's Madisonian purposes and its actual provisions is jarring. We hope the Rules Committee will overhaul the bill so that it might reflect its aspirations.

The Government Publications Reform Act states that its purposes are to "facilitate the efficient and economical production, dissemination, and permanent public access to government publications"(1) and to "broaden, strengthen, and enhance public access to all Government publications..."(2) Unfortunately, the bill would take only small steps to achieve these purposes. As currently drafted, the Government Publications Reform Act has three major flaws:

We are concerned that the Government Publications Reform Act might give OMB authority over GPO and over GPO's role in distributing government documents to the public. OMB has a record of, at best, malign neglect of its responsibilities to ensure that citizens have access to government documents.

While it is not certain that, under this legislation, OMB would gain substantial control over GPO, it does seem highly likely. Under the Government Publications Reform Act, the Government Printing Office would be abolished, and the Government Publications Office would be "established as an independent establishment in the federal government."(3) Federal law defines an "independent establishment" as:

Similarly, federal law defines an "Executive agency" as "an Executive department, a Government corporation, and an independent establishment."(5) So, under the Government Publications Reform Act, GPO would be considered an establishment in the executive branch, and an Executive agency. This makes it seem likely that GPO would fall under the control of OMB.

To appreciate the likely destructive impact of OMB authority over GPO, and on the dissemination of government information to the public, a short review of OMB and its Office of Information and Regulatory Affairs (OIRA) failures in this policy area is in order.

In a notable subversion of public access to government documents, OMB has not enforced existing law requiring that agency documents printed by private publishers be sent to depository libraries.(6) OMB's Circular No. A-130 did not establish an enforcement mechanism for laws requiring distribution of agency publications to the depository libraries, other than a cursory reference instructing agencies to do so.

OMB has failed to stop federal agencies from establishing copyright or copyright-like barriers to public access to government documents. For example, former Superintendent of Documents Wayne Kelley testified to the Rules Committee that the Bureau of the Census's report "The Hispanic Population of the United States: March 1994" was published by a Washington-based trade association, funded by Phillip Morris, and not distributed to the depository libraries. Copyright is held by the trade association.(7) That OMB has tolerated this copyright of a government publication is unacceptable.

OMB allowed the transfer of ownership of the Journal of the National Cancer Institute (JNCI) from the federal government to Oxford University Press -- USA. As of January 1, 1997, Oxford holds copyright to JNCI, even though government employees will work on the JNCI, and the JNCI is based on research funded by the taxpayers.(8)

OMB has failed to ensure the implementation of the 1996 amendments to the Freedom of Information Act (FOIA). These FOIA amendments require federal agencies to provide handbooks on how to request records from the agency, and to distribute reference materials containing an index of all major information systems of the agency and a description of major information and record locator systems maintained by the agency. Each agency also must provide an index of the records that have been, or are likely to be, requested more than once. All of these should be available from the agency upon request, and on the Internet. But OMB has done little to ensure that these provisions were carried out by the agencies.(9)

Given the OMB's poor record and unwillingness to support citizen access to government documents, the Congress should not give OMB authority over GPO. OMB might use that authority to hinder the distribution of government documents to the public.

We suggest that the Government Publications Reform Act establish GPO in a fashion more independent of the executive branch. We suggest that GPO be established using the same language by which the General Accounting Office was established: "The General Accounting Office is an instrumentality of the United States Government independent of the executive departments."(10) Consequently, we urge the Rules Committee to adopt the following language: "The Government Publications Office is an instrumentality of the United States Government independent of the executive departments." This should keep OMB from interfering with the important work of GPO, and its role in disseminating government documents to the public.

The federal government has yet to make the most important, most useful government documents easily available to the public. This is the most significant problem facing citizens in their efforts to gain access to federal government documents. Surely the technology exists to solve the problem. The Internet is an efficient and inexpensive way to distribute government information to the public. The marginal cost of offering a government document to a citizen over the Internet is essentially zero. The federal government can employ this technology to inform the public and increase the openness and transparency of our democracy. The taxpayers, who pay dearly to produce government documents, deserve no less. Yet, the Government Publications Reform Act does little to make the most important, most useful federal government documents easily available to the public.

The Government Publications Reform Act would establish a sweeping new rule to improve access to government publications:

It would name parties responsible for ensuring government publications are made available to the Superintendent of Government Publications Access Programs. The Government Publications Reform Act would grant GPO with rule-making powers to improve public access to government documents. The Government Publications Reform Act would require agencies to provide GPO with copies of government publications regardless of form or format - presumably including electronic copies. The bill also contains a package of new rules that would likely reduce the number of "fugitive documents" - primarily executive branch materials which are not distributed to the depository libraries.(15)

These are constructive provisions. However, none of these rules would require that the GPO place government documents and materials on the Internet, even though the Internet is the best single technology available for distributing government documents to the public in a timely manner. Surely, if the federal government is re-writing for the 21st century how it distributes government information to the public, it ought to require that the most significant government documents be placed on the Internet, so that citizens might read these materials in their homes and offices.

If the Rules Committee wishes to accomplish the findings and purposes of the bill, it can change the bill to read: "Notwithstanding any other provision of law, Government publications of the executive, legislative and judicial branches shall be made available at no charge to federal publications access libraries and on the Internet on GPO ACCESS."

The Government Publications Reform Act should explicitly require the federal government to place the following materials on the Internet:

CONGRESSIONAL DOCUMENTS AND MATERIALS

Congress has failed to make available to the public via the Internet the most important congressional documents, and newspaper reports and editorials have increasingly remarked on this failure.(16) These key congressional documents and materials include:

Texts of bills and amendments. The Government Publications Reform Act should require that all texts of bills be placed on the Internet as soon as they are printed or made available to lobbyists or members of a committee or subcommittee. The most important texts of bills -- discussion drafts, chairmans marks, managers marks, committee prints - are rarely placed on the Internet. So, while Washington lobbyists read the relevant drafts of bills, most Americans can only obtain antiquated versions. This two-tiered distribution system provides aid and solace to Washington lobbyists and their predominantly corporate clients, and the congressional committee chairmen who may do their bidding behind closed doors in return for campaign contributions. However, it greatly injures the ability of most citizens to advocate on their own behalf. Roll Call recently described this system as "Info-Corruption."(17) Without access to these crucial texts of bills, it is difficult for citizens to petition their Congress to seek redress of grievances. How can citizens be expected to petition their Congress knowledgeably without access to the relevant legislative documents? The current system of distributing congressional documents contravenes the spirit of the constitutional guarantee that "Congress shall make no law...abridging...the right of the people...to petition the Government for a redress of grievances."(18)

Voting records. The Government Publications Reform Act should require that Congress create an easily searchable Internet database of congressional voting records, indexed by bill name, bill subject, bill title, Member name, etc. Access to voting records is a cornerstone of democratic accountability. Congress ought to make it easy for citizens to obtain congressional voting records. Such a database would be simple and inexpensive to produce and maintain.

Corrected and uncorrected hearing records and written testimony. The Government Publications Reform Act should require that Congress place on the Internet all congressional hearing records and written testimony. Congress invites experts and scholars of varied political viewpoints to testify about the weighty issues facing our country, and the world. These hearings are of great interest and value. They are a treasure trove of useful facts, information, thoughts, and opinions. But few congressional hearing records have been placed on the Internet.

Congressional Research Service (CRS) reports and products. The Government Publications Reform Act should require that Congress place on the Internet all CRS reports, issue briefs, and other generic products. This year, the Rules Committee has been buried under a blizzard of newspaper editorials urging that CRS reports and products be placed on the Internet.(19) A broad coalition supports S. 1578, a bill to place CRS reports on the Internet. That coalition includes the Congressional Accountability Project, Consumer Project on Technology, Common Cause, League of Women Voters of the United States, Electronic Frontier Foundation, American Conservative Union, American Association of Engineering Societies, National Association of Manufacturers, Business Software Alliance, IBM Corporation, America Online Inc., Netscape Communications Corp., Intel Corp., Taxpayers for Common Sense, Fairness and Accuracy in Reporting, United Seniors Association, U.S. Term Limits, and the Impact Voters of America. The Rules Committee should accede to this outpouring of public support and include in the Government Publications Reform Act a provision placing CRS reports and products on the Internet.

Financial disclosure reports. The Government Publications Reform Act should require that Congress place on the Internet congressional financial disclosure reports for at least the previous six years. Congressional financial disclosure reports are computerized in the House and Senate, but only the most recent reports are available via the Internet - on the private, non-profit Center for Responsive Politics website.

Draft committee and conference reports. The Government Publications Reform Act should require that Congress place on the Internet draft committee and conference reports as soon as they are printed or made available to lobbyists or members of a committee or subcommittee. Much of what Washington lobbyists do involves surreptitiously inserting small provisions in committee or conference reports. Such provisions may have great impact on the way a law is carried out, or how government funding is distributed. Just as draft texts of bills should be placed on the Internet, so should draft committee and conference reports.

The Government Publications Reform Act contains a series of retrograde provisions that would establish a maximum number of copies of a congressional "bill, resolution, document, or report" that GPO may print, a procedure by which the House of Representatives and Senate determine this printing ceiling, called the "usual number" of copies to print, and criteria by which each chamber of Congress would decide how many copies constitute the ceiling "usual number."(20) Missing from the criteria is any assurance that an adequate number of printed copies would be made available to meet public demand for printed copies of hearing records, committee and conference reports, and other important congressional documents. We urge the Rules Committee to include the following language as a part of the criteria for determining the number of copies of congressional documents to print, in § 701 (b)(1) and (b)(2): "to provide an adequate number of copies to meet public demand, and ensure public access to congressional documents."

The intention of these printing ceiling provisions was presumably to save taxpayer funds. While saving tax dollars is a praiseworthy goal, this is a classic case of government being "penny-wise and pound foolish." Public access to congressional documents is of great importance. Although all congressional materials should be available on the Internet, the Internet does not obviate the printing of paper copies. Citizens must be able to read congressional documents in whatever form or format they need, and should not have to own costly technologies to perform their civic duty.

Under the Government Publications Reform Act, either the House of Representatives or the Senate could authorize GPO to print at most 300 copies of a congressional document in addition to the "usual number" of copies printed, with passage of a simple resolution and prior approval of the resolution from the House Committee on Oversight or the Senate Committee on Rules and Administration. Extra copies of congressional documents could not be printed until the appropriate committee has reported. More than 300 copies of a congressional document could be printed with the passage of a joint or concurrent resolution.(21) The Secretary of the Senate and the Clerk of the House may reprint up to 300 copies of "a pending bill, resolution, or public law or a report from a committee or congressional commission on pending legislation not accompanied by testimony or exhibits or appendices."(22) A committee of Congress could not procure the printing of "more than 300 copies of a hearing, or other document germane thereto...except by simple, concurrent, or joint resolution..."(23) Surely, this is a high hurdle to surmount. That formula could ensure that only the "usual number" of that congressional document would be printed, which could prevent citizens from reading congressional documents. In addition, committees of Congress may "curtail the number of copies of bills or resolutions"(24) irrespective of public demand for access to them. These provisions could greatly exacerbate Congress's failure to put its most important, most useful documents on the Internet, because they would likely further constrict the availability of the most important congressional documents. The bill includes no provisions requiring GPO to print extra copies of congressional documents because citizens need to read them to perform their civic duties.

In sum, these provisions are a direct attack on citizens' access to congressional documents. They should be struck from the bill, or tempered with provisions ensuring public access to printed copies of congressional documents.

JUDICIAL BRANCH DOCUMENTS AND FEDERAL COURT DECISIONS

The law. The Government Publications Reform Act should require that the Administrative Office of the U.S. Courts place on the Internet a searchable database of all federal court decisions since the founding of the United States, using a public citation system. Federal court decisions are difficult for many citizens to obtain. They are available in expensive bound volumes from West Publishing, from law libraries, and from high-priced computer assisted legal research services, such as Lexis-Nexis, and Westlaw. West Publishing is the only comprehensive publisher of federal and state court decisions. West claims copyright over the page numbers and corrected text of court decisions in its West court reporters. This is splendid for West, which makes ample profits by selling the text of the law back to Americans, while, not coincidentally, protecting its monopoly with generous campaign contributions to the Democratic Party.(25) But this is bad for Americans who want to read the law. Some U.S. Supreme Court decisions are now available on the Internet through GPO Access, and law schools have placed some federal appellate court decisions on the Internet. That is an improvement but is insufficient; citizens should be able to easily obtain and read the law.

Last year, the federal government approved the sale of West Publishing to Thomson Publishing, of Canada. The only complete electronic database of U.S. federal court decisions is now "owned" by a foreign corporation - and is not on the Internet.

The Government Publications Reform Act would require that federal court decisions be made available to the depository libraries, which are re-named as Federal publications access libraries.

In addition, the bill requires timely dissemination of court decisions to the public. These are positive steps. However, there is ample room for improvement. First, the Rules Committee should explicitly require that the Administrative Office of the U.S. Courts place all federal court decisions on the Internet, because the Internet is the best, most efficient and inexpensive technology for distributing government documents to the public in a timely manner.

Second, the above provisions in the Government Publications Reform Act regarding access to federal court opinions ought to be retroactive, so that all federal court opinions since the founding of the United States would be available via the Internet. American jurisprudence upholds the doctrine of stare decisis, which is the commitment of the courts to adhere to precedent. Given the central importance of precedent in American law, it is of little use to merely provide the depository libraries with recent federal court decisions, but not with the precedents upon which our law is built.

With the infirmity of the provisions in the Government Publications Reform Act regarding public access to federal court decisions, the American people cannot but marvel once again at the reticence of Congress to stand up to West Publishing.

We Americans ought to have easy access to the laws that we are supposed to obey. We should not have to visit a faraway law library - or subscribe to an expensive online service - just to find out what the law is.

The third major flaw in the Government Publications Reform Act is the confusing definition of the term "government publication." The definition of government publication exempts "information that is required for official use only or is for strictly internal administrative or operational purposes having no public interest or educational value."(28) This exemption could be interpreted to preclude distribution of important congressional documents to the public.

Many important congressional documents, such as committee prints, discussion drafts of bills, chairmans marks, managers marks, Congressional Research Service reports, and draft committee and conference reports could conceivably be classified as existing for "official use only." Consequently, the Government Publications Reform Act's definition of government publication could be interpreted to permit the current two-tiered system of distribution of congressional documents, which provides magnificent access for many Washington corporate lobbyists, while leaving most Americans bereft of access and out in the cold. This would subvert the findings and purposes of the Government Publications Reform Act.

We strongly urge the Rules Committee to change and clarify the definition of government publication to strengthen the public's rights to obtain to government documents, and add a provision to ensure that these congressional documents be included in the definition of government publication and be distributed to the public via the Internet.

A troubling trend among federal agencies is the establishment of copyright or copyright-like barriers to public use of government documents and materials, in spite of a statutory prohibition against the copyright of materials prepared by the government.(29) This loss of government documents from the public domain is alarming.

A principal example of this problem is West Publishing's claim that it "owns" the citations to the past 75 years of federal court opinions, and to the corrections that appear in the published versions of the court decisions. West Publishing's copyright claims have greatly restricted citizens access to federal court decisions.

To counter the wrongful and destructive use of copyright, the Government Publications Reform Act contains a sweeping definition and requirement of permanent public access to federal government documents:

While this provision is a positive step, it is inadequate to ensure that government documents and materials remain in the public domain, and are not subject to claims of copyright, misappropriation, or other sui generis property right claims. On May 19, 1998, the House of Representatives passed a dangerous bill (H.R. 2652) which would extend powerful new legal protections to database owners and their compilations of facts, including compilations of government documents. The bill could easily be used to draw government documents out of the public domain, and into the ownership of private firms, who could leverage the new legal protections to charge high prices for databases of government documents, like federal court decisions.
 

To ensure that government documents rest perpetually in the public domain, the Rules Committee should add the following language to the bill: "Government publications, or compilations thereof, shall be in the public domain, and are not subject to claims of copyright, misappropriation, or any other sui generis claim of property right."

The Government Publications Reform Act establishes a pricing policy for documents sold by the GPO which could lead to unnecessarily high prices for citizens wishing to obtain government documents. Instead, the Government Publications Reform Act should establish a regime of price discrimination for government documents sold by the GPO, whereby federal government documents would be sold to non-commercial users at marginal cost of printing, procurement, and production. Such systems of price discrimination are well-established in government pricing of information. For example, the federal government engages in price discrimination in the pricing of documents available from federal agencies under the Freedom of Information Act, and from the GPO under the Federal Depository Library Program. Commercial users should face higher prices which recoup for GPO the cost of providing that document by itself, without the benefits of the printing or production of other documents, which is known as the stand alone cost.(32) Such a system of price discrimination would help ensure that citizens do not face prohibitive prices for the government documents they need to carry out their civic duties, and is consonant with the findings and purposes in the Government Publications Reform Act supporting public access to government documents. The Government Publications Reform Act states that GPO's authority to print a document or report for distribution by Congress would lapse after 2 years, except for subsequent editions approved by Congress.(33) This provision would provide corporate welfare for the printing and publishing industries, at the expense of American citizens and taxpayers. It makes no sense for the federal government ever to cede its authority to print government documents. If citizens need paper copies of congressional documents to carry out their civic duties, then the federal government ought to be able to produce them. The likely effect of this provision is to further reduce citizens' ability to obtain important congressional documents, which would likely impair their ability to discharge their civic responsibilities. The Government Publications Reform Act establishes an advisory committee to assist the Superintendent of Government Publications Access Programs in making "recommendations on the components of a distributive system for permanent public access and the strategy for achieving such system and access."(34) Absent from this advisory committee list is any representative from the public interest community. The Rules Committee should add a provision requiring that at least one representative from the public interest community sit on the advisory committee, so that the public interest in access to government documents might be better represented in the committee. The Government Publications Reform Act provides for the presidential appointment and Senate confirmation of three GPO employees: the Administrator, the Superintendent of Government Publications Production and Procurement Services, and the Superintendent of Government Publications Access Programs. This is a waste of taxpayer funds. Three presidential appointees are not needed at GPO. One easily suffices. Given the lag time which plagues presidential appointments nowadays, some or all of those presidential appointments may never be filled.

To sum up, the Rules Committee, in its efforts to re-write the laws governing distribution of government documents to the public, should heed the findings and purposes of the Government Publications Reform Act, and re-draft this bill so that it gives the American people the ready access to government documents that the people need to discharge their civic duties.


ENDNOTES

1. Government Publications Reform Act ("GPRA") Sec. 3(b)(3).

2. GPRA § 1901.

3. GPRA § 316.

4. 5 U.S.C. § 104.

5. 5 U.S.C. § 105.

6. Prepared Statement of Michael F. DiMario, Public Printer, U. S. Government Printing Office, before the Committee on Rules and Administration, United States Senate, 24 April 1997.

7. Prepared Statement of Wayne P. Kelley, Superintendent of Documents, U. S. Government Printing Office, before the Committee on Rules and Administration, United States Senate, 18 June 1996.

8. Remarks of Wayne P. Kelley, Superintendent of Documents, U.S. Government Printing Office, before the Government Documents Roundtable, Federal Documents Task Force, 15 February 1997. Congressional Record, Senate, 27 February 1997, p. S1731. Prepared Statement of Senator John Warner before the Committee on Rules and Administration, United States Senate, 24 April 1997. For other examples, see the Prepared Statement of Michael F. DiMario, Public Printer, U. S. Government Printing Office, before the Committee on Appropriations, United States Senate, Subcommittee on Legislative Branch Appropriations, 10 July 1996.

9. Prepared Testimony of Michael E. Tankersley, Senior Staff Attorney, Public Citizen Litigation Group, before the House Government Reform and Oversight Committee, Government Management Information and Technology Subcommittee, 9 June 1998.

10. 31 U.S.C. § 702(a).

11. GPRA § 1904(a).

12. GPRA § 1905(a).

13. GPRA § 1903.

14. GPRA § 1905.

15. GPRA, Chapter 19.

16. Darren Goode, "High-Tech Malaise? Congress Still Lags in Putting Key Information on the Internet." Roll Call, 1 December 1997. Gary Ruskin, "America Off-Line: Gingrich's Unfulfilled Internet Promise." The Washington Post, 16 November 1997. "Watching Congress: Time to Renew Gingrich's Vow." Minneapolis Star Tribune, 13 November 1997. "Net Now, Newt." Austin American-Statesman, 11 November 1997. "Furnishing the Internet." The Washington Post, 8 November 1997. "Congress is Slow to Let Public Log On." San Jose Mercury News, 7 November 1997.

17. "Info-Corruption." Roll Call, 8 June 1998.

18. U.S. Constitution, 1st Amendment.

19. "Post Research on the Internet." Casper Star-Tribune, 9 July 1998. "Whose Research Is It?" The Washington Post, 7 July 1998. "Inform Us: Americans Have Right to Access Congressional Data on 'Net." Houston Chronicle, 5 May 1998. "Give the Public the Reports it Pays for." The Roanoke Times, 30 April 1998. "Democracy Online: Make Reports Available." Charleston (WV) Gazette, 18 April 1998. "Congress and Research: Give the Public the Data It Pays for." Minneapolis Star Tribune, 26 March 1998. "Beyond Thomas." Richmond Times-Dispatch, 13 March 1998. "Put the Research on the Internet." The Hartford Courant, 20 February 1998. "Opening Government." The Indianapolis Star, 18 February 1998. "Cyber Democracy: Research Should be Available to the Public." The Dallas Morning News, 17 February 1998. "More Access Online: Fulfilling a Pledge." The Arizona Republic, 10 February 1998. "On Line: Make Congressional Research More Accessible on 'Net." Houston Chronicle, 10 February 1998. Charles Levendosky, "Make Reports to Congress Available to Public." Casper Star-Tribune, 8 February 1998.

20. GPRA § 701.

21. GPRA § 703.

22. GPRA § 704.

23. GPRA § 722.

24. GPRA § 706.

25. Viveca Novak and Michael Weisskopf, "The Cheerful Giver." Time, 21 April 1997.

26. § 1906b.

27. § 1906b.

28. GPRA § 1902. A similar exemption currently exists in 44 U.S.C. § 1902. "Government publications, except those determined by their issuing components to be required for official use only or for strictly administrative or operational purposes which have no public interest or educational value and publications classified for reasons of national security, shall be made available to depository libraries through the facilities of the Superintendent of Documents for public information."

29. "Copyright protection under this title is not available for any work of the United States Government." 17 U.S.C. § 105. See Senator John Warner, "The Growing Crisis in Public Access to Public Information." Congressional Record, Senate, February 27, 1997, p. S1730. Robert M. Gellman, "Twin Evils: Government Copyright and Copyright-Like Controls Over Government Information." Syracuse Law Review, 45 Syracuse L. Rev. 999 (1995).

30. GPRA § 1907.

31. GPRA § 1708.

32. For useful background on pricing government information, see James Love, "Pricing Government Information." Journal of Government Information, Vol. 22. No. 5, pp. 363-387, 1995.

33. GPRA § 715.

34. GPRA § 1907.