Colleagues--
Although the time was very short, I submitted the attached comments on H.R. 830 to Representative Clinger and other members of Congress this morning.
As most of you surely know, H.R. 830 was introduced late on Monday, but it was very hard to obtain copies since they were not been printed right away and were also not available through the various electronic services. We finally obtained a copy either late Tuesday or early Wednesday, wrote the letter on Wednesday and Thursday for submission before the bill markup which took place today, Friday. This is extraordinary speed for any bill, let alone one of this significance. (For all you law librarians out there, I should also note that the version I found on THOMAS seems to be significantly different from what I now have in my hands in paper. I will check further on that issue.)
The result of the markup session today is that the most controversial section, section 3518(f), has been removed, at least temporarily. But a hearing is being scheduled, probably for sometime next week.
Unfortunately, there are many other concerns about this bill that also need to be addressed. This version of the P.R.A. is just the latest in a very long story, and some of the things we had achieved in earlier versions of the bill are simply missing from this one. I hope we'll be able to work on those issues as well, instead of focusing all of our time and attention on the one section.
Bob
February 10, 1995
The Honorable William F. Clinger, Jr.
2160 Rayburn House Office Building
U.S. House of Representatives
Washington, D.C. 20515-3805
Dear Representative Clinger:
I am writing on behalf of the American Association of Law Libraries to comment on H.R. 830, the Paperwork Reduction Act of 1995. Although AALL has several concerns regarding this legislation, for the purposes of this letter we are confining our comments to Section 3518 (f) and its impact on the policies underlying Copyright Act and FOIA. This provision is an egregious example of special interest legislation the consequences of which go far beyond the intended beneficiary.
The American Association of Law Libraries is a nonprofit organization with over 5,000 members. Our members respond to the legal and governmental information needs of legislators, judges, and other public officials at all levels of government, corporations and small businesses, law professors and students, attorneys, and members of the general public.
Section 105 of the Copyright Act mandates that the Federal government may not copyright information it creates or collects. The purposes of that section are to ensure the public's right to equal and equitable access to Federal government information, and to ensure that the information may be re-disseminated freely. Section 3518 (f) of H.R. 830 would undermine this goal by providing that when a contractor prepares or otherwise "adds value" to government information, the resultant product or database need no longer be released to the public--even though that public has paid for its creation. The implication of such a provision in the paper environment would be that a work printed by an outside contractor need not be available freely to the public as a Federal document but rather would become property of the contractor. Such a policy is clearly untenable and defeats the basic purpose of Section 105 of the Copyright Act.
Consistent with this theme, it is a well-established principle of Federal information policy that an information vendor should not be able to obtain an exclusive contract for the dissemination of government information. (See OMB A-130, .) Subpart 2 of Section 3518 (f) could easily give a contractor the exclusive right to disseminate the information if an agency chooses not to maintain the original records or does not have them in a usable format. This provision, allowing some companies to obtain agency information while making it impossible for others to do so, is contrary to long-standing government information policy.
Section 3518 would also undermine the public's access to government information under FOIA by providing a blanket exemption for agency records to which any value, however small, has been added by an outside contractor. This provision creates a major loophole by which agencies could deliberately circumvent the Freedom of Information Act. Such action would not only defeat the purposes of FOIA but also would create a de facto monopoly over the information in question.
Finally, Section 3518 appears to be an attempt to intervene in pending litigation on the side of one of the parties (Tax Analysts' v. Department of Justice). In that case, Tax Analysts seeks the release of the text of court opinions prepared for the Department of Justice under a contract with West Publishing Company. That case should be allowed to proceed normally and not be rendered moot by this ill-advised Act of Congress.
AALL believes that enactment of Section 3518 (f) would create the potential for restricting public access to Federal government information. It would also allow a monopoly over such information contrary to well-established policies reflected in the Copyright Act, OMB A-130 and FOIA. Additionally, if enacted, the provision would interfere with on-going litigation. We urge you to strike this section from the bill.
Sincerely,
Robert L. Oakley
American Association of
Law Libraries
Washington Affairs
Representative
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