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Date:         Thu, 27 Aug 1992 16:06:22 CDT
From:         ROAKLEY%GUVAX.BITNET@PSUVM.PSU.EDU
Subject:      AALL COMMENTS ON A-130 (LONG) FROM BOB OAKLEY

----------------------------Original message----------------------------



                                        August 24, 1992



Mr. James B. MacCrae, Jr.
Acting Administrator
  and Deputy Administrator
Office of Information &
Regulatory Affairs
Office of Management & Budget
Room 3235 New Executive Office Building
Washington, D.C.  20503

Dear Mr. MacCrae:

     I am writing on behalf of the American Association of Law
Libraries to comment on the proposed revisions to OMB Circular No.
A-130, (published at 57 F.R. 18296-18306, April 29, 1992) on the
management of Federal information resources.  The American
Association of Law Libraries is an organization of over 5,000
members serving the needs of government agencies, legislatures, and
courts, academia, and lawyers in private practice.  We have been
actively involved in the discussions of public information policy
for the last several years, and we have worked closely with those
who have tried to define that policy through the revision of the
Paperwork Reduction Act.  We are pleased now to offer our comments
and suggestions on the proposed revisions to Circular A-130.

Improvements Over Earlier Versions of A-130

     In the view of the American Association of Law Libraries, the
proposed revision is a significant improvement over earlier
versions which, as you know, engendered significant concern from
the library community.  In particular, we are pleased that the
Circular affirms a clear responsibility for agencies to provide
information to the public (section 8a(5)).  The responsibility is
important, as the Circular states, because "the unrestricted flow
of information between the government and its citizens is essential
to a democratic society" (section7(c)).  These principles are not
only ones in which the library community believes, they are ones in
which the library community plays an important role.  Through the
depository library program, libraries help to ensure widespread,
low cost access to government information for the citizens of the
United States.  We are pleased, therefore, that the Circular also
emphasizes (section 8a(7)(f)) that printed government publications
should be made available to depository libraries through the
facilities of the Government Printing Office.

     In addition to the important positive principles mentioned
above, over the years, we have also become concerned about a number
of restrictive practices that have had the effect of raising the
cost of government information to libraries and allowing some
agencies to avoid the Depository Program altogether.  We were
pleased, therefore, to see in Section 8a(8)(a)-(b) that OMB
proposes to prohibit exclusive contracts and to prohibit
restrictions on the resale or redissemination of Federal
information products.  Both of these practices have been problems
in the past, and a clear statement of policy will be welcome.

     With one exception (see below), we also welcome the section on
user charges (section 8a(8)(c)).  Increasingly it seems that
government agencies are trying to make money from the information
they have collected and organized at taxpayer expense.  A policy
that keeps the price of such information at or below the cost of
dissemination will help to insure its widespread availability.
Unfortunately, however, a new practice is developing in the Federal
Courts that seeks to avoid these principles by taking advantage of
one of the exceptions.  We will suggest below that a clarification
is needed.

     Despite these significant improvements to the Circular, the
American Association of Law Libraries does have several concerns.

Cost Benefit Approach

     First, we are concerned about the strong cost-benefit approach
taken by the Circular.  Section 7d states as a basic working
assumption that the "expected public and private benefits derived
from government information should exceed the public and private
costs of the information".  Similarly, Section 8a(6)(a) urges
agencies to disseminate information in a manner that "achieves the
best balance among the goals of maximizing the usefulness of the
information and minimizing the cost to the government and the
public".  We believe that a cost-benefit approach to the
dissemination of government information is misplaced, and we fear
that if agencies have to do a cost-benefit analysis before a new
information product can be developed, it will be a significant
barrier to the creation of new information products and services.

     A cost-benefit analysis of government information is
inappropriate because it is likely to lead to inappropriate and
undesirable results.  In many cases, the public and private
benefits of government information are diffuse and hard to
quantify.  As a result, the costs are likely to be exaggerated in
relation to the benefits which are likely to be understated.
Under such circumstances, the cost benefit analysis will create a
de facto presumption against the dissemination of information.
This, we believe, is wrong.


     In general, the cost of a new information product will be
relatively easy to identify.  It will include the cost of data
collection, the cost of compiling the data, writing any textual
material, editing and adding supplementary materials such as charts
and photographs, printing, binding, and distribution costs.  Unless
the particular information product is going to support a particular
segment of the business community, however, the benefits may not be
so easily quantified.  How do you quantify the benefits of a
booklet to help new help new immigrants become citizens?  How do
you quantify the benefit of a series of pamphlets designed to
promote AIDS awareness?  How do you quantify the benefits of
reports and documents that simply inform the American people of the
work of their government?  We believe that it is difficult to
quantify the benefits of government information, and that inclusion
of this requirement in Circular A-130 will seriously undermine the
commitment of the government to making its information available.

     In addition, the directive to consider both public and private
benefits as well as public and private costs suggests the need for
an agency to prepare an information dissemination impact statement,
analyzing both the benefits and costs throughout society.  No
doubt, such a statement would have to include any alleged costs to
private information vendors.  If any vendor can allege that a new
product would harm its business, that statement will further
exacerbate the problem with the cost-benefit equation.  Under the
Circular, it would fall to an agency to verify the claim.  This is
an impossible administrative task that will further slow down or
stop the development of new products.

     The American Association of Law Libraries believes that a
cost-benefit analysis of government information cannot be fairly
applied in such a way as to promote access to information.  As a
result, we urge that these two sections be deleted from the
Circular.

Definition of Government Publication

     Second, in its interpretation of the definition of "government
publication", the proposed Circular excludes "electronic data
files, software, online information services and the like".  We
believe that this interpretation is wrong and ignores the changing
reality of publishing, both within the government and in private
industry as well.  A government publication is a government
publication, regardless of its format, whether in print form,
microform, on a floppy disk, or even on a CD.  Further, it should
make no difference that the same material is included in a publicly
available online database.  It remains information a government
agency thought valuable enough to compile and make available.  The
mere fact of its distribution over electronic networks instead of
through the channels of print publication does not make it any less
a publication.


     OMB acknowledges the developing importance of electronic
publication in its testimony in the 102d Congress on S.2813 and
H.R.2772 on July 29, 1992.  There, Frank Hodsoll, OMB Deputy
Director for Management, stated:

          Many electronic information products are
          disseminated in magnetic media such as tapes
          and diskettes.  These have the benefit of low
          cost and negligible capital investment by the
          users since they generally already have the
          equipment.  Compact disk read-only memory (CD-
          ROM) is becoming the dissemination medium of
          choice for many information products. This is
          due to its ability to store large amounts of
          data in a permanent medium, the relatively
          modest capital investment needed for readers,
          and the low cost of disseminating large data
          bases through the mails.  Simple electronic
          bulletin boards are also commonly used for
          smaller data bases.  They are inexpensive for
          agencies to maintain and operate, and any user
          with a modem can access them subject only to
          telecommunications costs. [Emphasis added.]

We believe that this statement is correct and that it is simply
wrong to exclude these materials from the definition of government
publications.

     As an example, the Freedom of Information Act requires
agencies to publish their opinions.  At least one agency (FERC) has
elected to "publish" their opinions on an electronic bulletin
board, rather than in the usual print form.  We believe that FERC's
dissemination of its opinions in this way complies with the
technical requirement of publication. (It may not, however, meet
the need for a permanent record.)  We also believe that the
definition of government publication in Circular A-130 must be
broad enough to include such information.

Depository Library Program

     Third, relying on its interpretation of the definition of
government publication, the proposed Circular goes on to indicate
that since electronic information is, by definition, not a
government publication, it need not be made available to the
Depository Library Program.  The Circular adds, of course, that it
is good public policy to make such information available to
depositories, within the constraints of the departmental budget.
We read this to say "it would be a nice thing to do, if you can
afford it."  With such a mandate, we believe that few agencies will
make their electronic publications available to depository
libraries.

     The depository library program was developed to ensure
widespread access to government information and the accountability
of the government to its citizens.  In that way, we believe that
the Depository Library Program and the Freedom of Information Act
are complementary.  FOIA ensures that certain agency records be
made available to the public, whether in print or electronic form.
The program of government publication and dissemination through the
depository library program allows agencies to operate more
efficiently by anticipating a general public need for access to
some of their information and to transfer that information into
publications for general distribution.  Libraries then facilitate
making the information available to end users.  Today, as indicated
in Mr. Hodsoll's testimony above, because of the economies of
electronic publication, agencies may well choose to put their
information into electronic, rather than print form.  We see no
reason why that information should be excluded from the depository
library program merely because of that fact.  We urge the Office of
Management and Budget to rewrite its interpretation of government
publication to include government publications in any form,
including electronic, and thereby to make this important
information available to depository libraries.

Mandate to Change to Electronic Distribution

     Without such a change to the Circular, we are very concerned
about Section 9, which mandates agencies to use electronic media
and formats "to make government information more easily accessible
and useful to the public."  If the conversion to electronic form
means that an agency does not disseminate the information to
depository libraries and that the information is therefore less
available to the general public, we believe that Section 9 will be
counterproductive.  In addition to the considerations already
listed in Section 9 for conversion to electronic form, we believe
that subsection 9e will need to be rewritten as follows: "a change
to electronic dissemination, as the sole means of disseminating the
information product, will not result in a reduction in the
availability of information free to the public because of its
withdrawal from the depository library program or impose
substantial acquisition or training costs on users especially state
and local governments, libraries and small business entities." (New
text underlined.)

Notice Requirement

     Fourth, sections 8a(7)(h) and (i) create a responsibility for
an agency to communicate with the public about their information
dissemination practices.  However, the interpretation of this
section appears to create a troublesome double standard.  Where
members of the public might consider a new product unnecessary or
duplicative, the agency is directed to solicit and evaluate
comments.  However, when terminating a product, a lower standard
applies.  Despite the fact that such a product might be very
important to a large segment of the public, the agency is required
only to give notice (presumably a brief notice in the Federal
Register would suffice) and consider any views that are presented
to it.  In this latter case, the agency is not required to solicit
opinions, but only to give notice.  Further, it is not required to
evaluate but only to consider.  The standard for termination is
plainly lower.  Again, this double standard appears to allow
information vendors to slow down or stop the process of creating
new publications while making it difficult for the public to
express their views about the importance of existing publications
before they are cease publication.  The text of the Circular itself
is written generally enough to avoid the problem identified here.
However, we believe the interpretive section either should be
changed to be more even-handed, or it should be deleted.

User Charges

     Fifth, as previously noted we believe that the section on User
Fees is generally very good.  However, that section provides an
exception to the general policy "where the agency collects,
processes, and disseminates the information for the benefit of a
specific identifiable group beyond the benefit to the general
public."  Relying on similar language in Circular A-25, the Federal
court system is now beginning to impose a $1 per minute fee for
online access to docket information.  (See attached letter from
Robert Mecham, head of the Administrative Office of the U.S.
Courts.  We understand that Circular A-130 does not apply directly
to the Judiciary.  However they have chosen to rely on OMB policy,
as articulated in Circular A-25).  Formerly this information was
provided free by consulting with the clerk of the court.  To reduce
the workload of the clerk, the courts developed an online version
of the information which could be accessed directly.  Now, however,
the courts are seeking to recover what appears to be significantly
more than their distribution costs for access to the database.

     We would not have objected to the exception in the Circular if
it had not been for the recent charges for information access in
the Federal courts.  However, it now appears that the courts are
saying that access to their database by an individual attorney
benefits that individual, and therefore comes under the exception,
justifying a higher cost.  We believe that OMB should add some
language to its exception to clarify that this is not the case.  We
are not wedded to any particular language but suggest for your
consideration: "It is the understanding of OMB that dialing into a
Federal database to obtain government information that will not be
sold to a third party does not constitute a benefit for a specific
identifiable person or group under this section."  If this language
is not acceptable to OMB, we would be more than willing to meet
with OMB staff to discuss other alternative language that would
clarify the section.  Absent such clarifying language, many other
groups who use government information might find themselves in a
similar situation.  This could have the effect of having the
exception become the rule.  At a minimum, the section should
indicate that it is intended to apply to services that have been
prepared for a single user or group, not a service that has been
developed for general purposes, but which is accessed by
individuals.

     The American Association of Law Libraries believes that the
new Circular A-130 is a significant improvement over the old one.
However, as suggested here, significant concerns remain.  We hope
that OMB will take these concerns into consideration and make the
changes we have suggested.  We will be happy to meet with you or
any member of your staff to discuss these concerns.  Thank you for
the opportunity to comment.

                                        Sincerely,




                                        Robert L. Oakley
                                        AALL Washington Affairs
                                        Representative



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cc:  Mr. Peter B. Weiss
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