B-203577 L/M, AUG 18, 1981

B-203577 L/M, AUG 18, 1981

PRECIS-UNAVAILABLE

MARK O. HATFIELD, UNITED STATES SENATE:

THIS LETTER IS IN FURTHER RESPONSE TO THE COMMITTEE'S RECOMMENDATION IN ITS REPORT ON THE SUPPLEMENTAL APPROPRIATIONS AND RESCISSION BILL, 1981 (S. REP. NO. 97-67, 97TH CONG., 1ST SESS. 316), WHICH STATES:

"REGARDING THE LEGISLATIVE HISTORY FILE, THE COMMITTEE RECOMMENDS THAT GAO CAREFULLY EXAMINE THIS PROGRAM AND REPORT BACK TO THE COMMITTEE THE PURPOSES OF THE PROGRAM, ITS COSTS, AND WHETHER THERE IS AN EXISTING LEGISLATIVE REQUIREMENT THAT THIS FILE BE SENT TO LIBRARIES THAT REQUEST IT." PURPOSES AND COSTS OF PROGRAM

THE PRIMARY PURPOSE OF THE PROGRAM IS TO PRESERVE A UNIQUE COLLECTION OF LEGISLATIVE MATERIALS THROUGH THE MICROFICHE PROCESS, MATERIALS WHICH PROVIDE AN INVALUABLE RESEARCH RESOURCE TO STAFF OF THE GENERAL ACCOUNTING OFFICE AND THE CONGRESSIONAL RESEARCH SERVICE.

AS EXPLAINED IN THE DOCUMENT ENTITLED "GAO LEGISLATIVE HISTORY FILE", A COPY OF WHICH WE HAVE ALREADY PROVIDED TO YOU, GAO HAS HISTORICALLY MAINTAINED A COMPLETE LEGISLATIVE HISTORY OF VIRTUALLY ALL OF THE PUBLIC LAWS SINCE 1921. THE FILES PRIMARILY CONSIST OF MATERIALS ORIGINATING FROM THE CONGRESS OF THE UNITED STATES, AS WELL AS INTERNAL MATERIAL. AMONG THE CONGRESSIONAL MATERIALS WHICH ARE INCLUDED ARE BILLS, HEARINGS, REPORTS, DEBATES, AND RESOLUTIONS PERTAINING TO THE PUBLIC LAWS.

OVER THREE YEARS AGO, WE DETERMINED THAT THESE FILES WERE SO VALUABLE FOR GAO'S INTERNAL RESEARCH PURPOSES THAT THEY SHOULD BE COPIED INTO MICROFICHE TO ENSURE THEIR PRESERVATION. THE PURPOSES OF THIS PROGRAM WERE TO AVOID POSSIBLE DESTRUCTION OR DAMAGE TO THIS UNIQUE COLLECTION, AND TO SAVE ON THE VAST AMOUNT OF GAO INTERNAL SPACE TAKEN UP BY THESE DOCUMENTS.

AT AN EARLY STAGE OF THE PROGRAM, THE CONGRESSIONAL RESEARCH SERVICE (CRS), CONSIDERING GAO'S HISTORIES VALUABLE RESEARCH TOOLS, DECIDED TO PARTICIPATE. UNDER AN AGREEMENT WITH GAO, CRS WAS TO RECEIVE ONE COMPLETE SET OF THE MICROFICHE (EXCLUDING INTERNAL MATERIALS) IN EXCHANGE FOR PAYING PART OF THE COST OF THE PROJECT.

TO CARRY OUT THIS MICROFICHE PROGRAM, GAO ENTERED INTO A CONTRACT WITH REMAC INFORMATION CORPORATION IN SEPTEMBER 1977. UNDER THE CONTRACT, REMAC WAS REQUIRED TO FILM THE FILES, ORGANIZE THE MATERIAL IN A CONSISTENT MANNER, AND CREATE A TABLE OF CONTENTS AND A TITLE FOR EACH LEGISLATIVE HISTORY. THEN REMAC WAS REQUIRED TO CREATE A SILVER HALIDE MICROFICHE MASTER, TWO SILVER DUPLICATES (ONE OF WHICH WAS TO GO TO CRS), AND ONE DIAZO WORKING DUPLICATE. REMAC COMPLETED THE CONTRACT, ITS PERFORMANCE WAS SATISFACTORY, AND THE TOTAL COST WAS APPROXIMATELY $500,000. THIS CONTRACT DID NOT INCLUDE ANY PROVISION FOR MULTIPLE MICROFICHE SETS FOR GAO, CRS, OR THE PUBLIC.

THE REMAC CONTRACT WAS COMPLETED IN 1980. REALIZING THAT THE MICROFICHE COLLECTION WAS A VALUABLE RESEARCH SOURCE AND BELIEVING THAT OUTSIDE GROUPS WOULD BE INTERESTED IN OBTAINING SETS, GAO HELD MEETINGS WITH COMMERCIAL PUBLISHERS AND WITH THE GOVERNMENT PRINTING OFFICE (GPO) REGARDING THE DUPLICATION OF MICROFICHED SETS. GAO REQUESTED GPO TO PRODUCE THE DUPLICATE SETS.

GPO IN TURN ENTERED A CONTRACT WITH VITRO LABORATORIES FOR INITIAL REPRODUCTION OF THE GAO MICROFICHE. UNDER THE CONTRACT, TO BEGIN APRIL 1, 1980, VITRO WAS REQUIRED TO PRODUCE TWENTY DIAZO SETS OR GAO, TWELVE DIAZO SETS FOR CRS, AND TWO SETS OF SILVER HALIDE MICROFICHE FOR GPO, FOR THE FUTURE REPRODUCTION AND DISTRIBUTION TO DEPOSITORY LIBRARIES AND SALES TO THE PUBLIC. HOWEVER, IN JULY 1980 GPO WITHDREW ITS REQUIREMENT FOR TWO SILVER HALIDE SETS BECAUSE THE QUALITY OF THE SILVER DUPLICATES WAS NOT GOOD ENOUGH TO PRODUCE ACCEPTABLE DIAZOS FOR DEPOSITORY LIBRARIES AND PUBLIC SALES. GAO SUPPLIED THE FIRST GENERATION SILVER MASTER FOR THE VITRO DUPLICATIONS. GAO AGREED TO SEND APPROXIMATELY 6,000 MICROFICHE PER QUARTER TO GPO, WITH THE DUPLICATION OF THE ENTIRE COLLECTION OF APPROXIMATELY 50,000 MICROFICHE TO BE COMPLETED WITHIN A TWO-YEAR PERIOD. THREE SHIPMENTS WERE COMPLETED AT THREE-MONTH INTERVALS.

IN OCTOBER 1980, VITRO SHIPPED TO GAO THE FIRST SET OF DIAZO DUPLICATES BUT THEIR QUALITY WAS DETERMINED UNACCEPTABLE AND THIS SHIPMENT WAS REJECTED. THE CONTRACTOR AGREED TO CLEAN THE MASTERS, RESHOOT AND RECOLLATE THE DIAZO SETS. VITRO RETURNED THE COPIES AND MASTERS TO GAO IN JANUARY AND FEBRUARY 1981. GAO DISCOVERED THROUGH A CURSORY CHECK THAT THE DIAZO DUPLICATES WERE SOMEWHAT IMPROVED BUT THAT MANY OF THE MASTERS HAD BEEN DAMAGED.

BECAUSE OF THE POOR QUALITY OF PERFORMANCE, GPO DID NOT RENEW THE VITRO CONTRACT AFTER THE FIRST YEAR AND NOTHING HAS BEEN PAID. SINCE VITRO DID NOT PRODUCE THE SILVER HALIDE SETS, GPO IS NOT NOW ABLE TO MAKE COPIES OF THE FICHE EITHER FOR DEPOSITORY LIBRARIES OR FOR THE PUBLIC. TO OUR KNOWLEDGE, GPO HAS NOT DEVELOPED PLANS TO COMPLETE THE PROJECT.

THE TOTAL COST OF THE VITRO CONTRACT IS NOT YET KNOWN. THE CONTRACT ITSELF ESTIMATED ITS COST TO BE $53,616.40 PER YEAR FOR TWO YEARS. HOWEVER, BECAUSE THE QUALITY OF THE WORK DONE HAS BEEN UNACCEPTABLE, THE ACTUAL LIABILITY OF THE GOVERNMENT, IF ANY, IS UNCERTAIN. SINCE NO PAYMENTS HAVE BEEN MADE, THERE HAS BEEN NO COST FOR DUPLICATION AND DISTRIBUTION TO DEPOSITORY LIBRARIES OR TO THE PUBLIC. THE ONLY PROGRAM COST INCURRED TO DATE IS THE $500,000 PAID TO REMAC TO CREATE THE ORIGINAL MICROFICHE MASTER AND THE SILVER AND DIAZO WORKING DUPLICATES.

DEPOSITORY LIBRARY REQUIREMENT

IN ADDRESSING THE COMMITTEE'S LAST QUESTION - WHETHER THERE IS AN EXISTING LEGISLATIVE REQUIREMENT THAT THE FILES BE SENT TO DEPOSITORY LIBRARIES - WE REQUESTED THE VIEWS OF GPO. THE ACTING PUBLIC PRINTER RESPONDED IN A LETTER DATED JUNE 16, 1981, WHICH STATES IN RELEVANT PART:

"IT SEEMS TO US THAT THE THRESHOLD QUESTION IS WHETHER OR NOT THE LEGISLATIVE HISTORY FILE IS A GOVERNMENT PUBLICATION WITHIN MEANING OF 44 U.S.C. 1901. WILL IT BE 'PUBLISHED' AS AN INDIVIDUAL DOCUMENT? IF NOT, THE ENTIRE ISSUE IS MOOT. IF IT WILL BE SO 'PUBLISHED,' THEN *** 44 U.S.C. 1902 WOULD MAKE DISTRIBUTION BY THE SUPERINTENDENT OF DOCUMENTS MANDATORY ***."

THE APPLICABLE STATUTES ARE FOUND IN TITLE 44 OF THE U.S.C. IN CHAPTER 19. SECTION 1902 REQUIRES THAT "GOVERNMENT PUBLICATIONS", FROM WHATEVER SOURCE, BE MADE AVAILABLE TO DEPOSITORY LIBRARIES UNLESS THEY ARE "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."

WITH THE QUOTED EXCEPTIONS, THE LANGUAGE OF SECTION 1902 IS MANDATORY. HOWEVER, THE DEFINITION OF "GOVERNMENT PUBLICATION" IS NOT AS CLEAR. SECTION 1901 DEFINES "GOVERNMENT PUBLICATION" AS "INFORMATIONAL MATTER WHICH IS PUBLISHED AS AN INDIVIDUAL DOCUMENT AT GOVERNMENT EXPENSE, OR AS REQUIRED BY LAW." WE WOULD VIEW EACH SEPARATE LEGISLATIVE HISTORY FILE, WHETHER IN PAPER OR FICHE FORM, AS A SEPARATE, INDIVIDUAL DOCUMENT. WHETHER THE ENTIRE GAO LEGISLATIVE HISTORY COMPILATION OF ALL BILLS PASSED SINCE 1921 IS CONSIDERED AS A SEPARATE DOCUMENT IS THEREFORE OF NO CONSEQUENCE.

THE STATUTE DOES NOT INDICATE WHAT THE CONGRESS MEANT BY "PUBLISHED". THIS DEFINITION ORIGINATED IN PUBLIC LAW 87-579 KNOWN AS THE DEPOSITORY LIBRARY ACT OF 1962. THE LEGISLATIVE HISTORY OF THIS ACT GIVES NO FURTHER MEANING TO THIS DEFINITION.

UNLESS OTHERWISE SPECIFIED WE MUST ASSUME THAT THE CONGRESS INTENDS THE WORDS IT USES TO HAVE THEIR PLAIN AND ORDINARY MEANING. SEE UNITED STATES V. WURTS, 303 U.S. 414, 417 (1938); UNION PACIFIC R. R. CO. V. HALL, 91 U.S. 343, 347 (1875). THE MOST RELEVANT DEFINITIONS OF "PUBLISH" FROM WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (UNABR. 1966) ARE:

1 - TO PLACE BEFORE THE PUBLIC,

2 - TO PRODUCE FOR PUBLICATION OR ALLOW TO BE ISSUED FOR DISTRIBUTION OR SALE, AND

3 - TO REPRODUCE FOR PUBLIC CONSUMPTION IN OUR OPINION, THEREFORE, A DOCUMENT IS NOT PUBLISHED, AND THUS DOES NOT BECOME A "GOVERNMENT PUBLICATION," UNTIL IT IS PRODUCED WITH THE INTENT TO MAKE IT PUBLIC AND IN SUCH FORM THAT IT CAN BE MADE AVAILABLE TO THE PUBLIC.

THE GAO LEGISLATIVE HISTORY FILES, IN THEIR ORIGINAL PAPER FORM, WERE ASSEMBLED AND MAINTAINED SOLELY FOR USE WITHIN GAO. GENERALLY, THEY WERE NOT AVAILABLE TO THE PUBLIC. THEY WERE, THEREFORE, NOT "PUBLISHED" AND THUS NOT "GOVERNMENT PUBLICATIONS" WITHIN THE MEANING OF 44 U.S.C. SEC. 1902. MOREOVER, THE ORIGINAL PROGRAM CALLED FOR REPRODUCING THE FILES ON MICROFICHE PRODUCED COPIES WHICH WERE INTENDED SOLELY FOR USE WITHIN THE TWO AGENCIES CONCERNED. REPRODUCING THE HISTORIES AT THAT POINT WAS MERELY CHANGING THE FORM OF THE FILES FROM PAPER TO MICROFICHE. BECAUSE THE MICROFICHE COPIES WERE NOT MADE AVAILABLE TO THE PUBLIC, THEY WERE NOT "PUBLISHED" AND AGAIN DID NOT CONSTITUTE "GOVERNMENT PUBLICATIONS."

GAO'S AGREEMENT WITH THE GPO TO REPRODUCE THE MICROFICHE WAS INTENDED, IN PART, TO MAKE THE GAO LEGISLATIVE HISTORIES AVAILABLE TO THE PUBLIC. GPO'S CONTRACT WITH VITRO WAS DESIGNED TO EFFECTUATE THIS PURPOSE. HAD VITRO FULFILLED THE CONTRACT AS ORIGINALLY DRAFTED AND PRODUCED SILVER HALIDE FICHE FOR GPO, GPO WOULD HAVE BEEN ABLE TO PRODUCE SUFFICIENT MICROFICHE FOR DISTRIBUTION TO DEPOSITORY LIBRARIES AND FOR SALES TO THE PUBLIC. HAD THIS OCCURRED, THE GAO LEGISLATIVE HISTORIES WOULD HAVE BECOME "GOVERNMENT PUBLICATIONS" UNDER 44 U.S.C. SEC. 1901. SECTION 1902 THEN WOULD HAVE REQUIRED THAT THE HISTORIES BE MADE AVAILABLE TO THE DEPOSITORY LIBRARIES.

HOWEVER, AS WE HAVE STATED ABOVE, VITRO NEVER PRODUCED THE SILVER HALIDE SETS FOR GPO AND THUS GPO CANNOT MAKE ADDITIONAL COPIES FOR THE PUBLIC. FURTHER, BECAUSE VITRO DID NOT PRODUCE ANY MICROFICHE OF ACCEPTABLE QUALITY, THE ONLY FICHE IN EXISTENCE ARE THOSE WHICH WERE PRODUCED UNDER THE ORIGINAL CONTRACT WITH REMAC. THUS, THE GAO LEGISLATIVE HISTORIES ARE STILL NOT AVAILABLE TO THE PUBLIC AND ARE NOT "GOVERNMENT PUBLICATIONS". IT FOLLOWS THAT THERE IS NO CURRENT LEGISLATIVE REQUIREMENT THAT THESE HISTORIES BE MADE AVAILABLE TO THE DEPOSITORY LIBRARIES.

SHOULD GPO DECIDE TO COMPLETE THE PROJECT OF PUBLISHING THE GAO LEGISLATIVE HISTORIES, IN OUR OPINION THE APPROPRIATION WHICH SHOULD BE CHARGED WITH THE COST OF THE REQUIRED DISTRIBUTION TO DEPOSITORY LIBRARIES IS GPO'S. WHEN GOVERNMENT PUBLICATIONS ARE MADE AVAILABLE TO DEPOSITORY LIBRARIES, UNDER THE REQUIREMENT OF 44 U.S.C SEC. 1902:

"THE COST OF PRINTING AND BINDING THOSE PUBLICATIONS DISTRIBUTED TO DEPOSITORY LIBRARIES OBTAINED ELSEWHERE THAN FROM THE GOVERNMENT PRINTING OFFICE, SHALL BE BORNE BY COMPONENTS OF THE GOVERNMENT RESPONSIBLE FOR THEIR ISSUANCE; THOSE REQUISITIONED FROM THE GOVERNMENT PRINTING OFFICE SHALL BE CHARGED TO APPROPRIATIONS PROVIDED THE SUPERINTENDENT OF DOCUMENTS FOR THAT PURPOSE." 44 U.S.C SEC. 1903.

BECAUSE GPO HAS UNDERTAKEN TO REPRODUCE THE MICROFICHE FOR PUBLIC DISTRIBUTION, THE APPROPRIATION CHARGEABLE FOR COPIES REQUESTED BY DEPOSITORY LIBRARIES WOULD APPEAR TO BE THAT "... PROVIDED THE SUPERINTENDENT OF DOCUMENTS FOR THAT PURPOSE."