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2. Overview of U.S. Federal Government Information Policy1 Nancy Weiss Institute of Museum and Library Services, United States Information policy in the United States has a long history, dating back to the establishment of the nation. The founding fathers, who drafted the U.S. Constitution and the countryâs early laws, faced significant information policy and access challenges. They had helped to establish a new democracyâwith a government of the people, for the people, and by the peopleâin a country in which people were widely dispersed and generally uneducated. They needed to create different mechanisms of communication and information dissemination in order to promote trade and economic development. They also had to ensure that individuals were able to obtain the information and skills necessary to participate meaningfully in their own governance. As James Madison, one of the founders, said, âA popular government without popular information or the means of acquiring it is but a prologue to a farce, or a tragedy, or both.â As a result, in the United States we have a long cultural and social history of supporting and encouraging public access to information, an attitude that is closely linked with our constitutional and statutory guarantees of freedom of expression, freedom of the press, transparent governance, and democracy. From the beginning, our nation recognized that access to and use of information benefits the nation's citizens as well as the broader global community by promoting the advancement of knowledge, cultural understanding, economic growth, and the general welfare of society. Of course, access to government information is just as important to nations with highly developed technological and industrial capacity as it was to the United States in the late 1700s. Governments today create vast amounts of information with economic and social value, including but not limited to consumer information, statistical compilations, and information for academic and scientific uses. This presentation provides a brief overview of the public sector information policies and practices in the United States. There are numerous federal laws that govern access to U.S. government information, ranging from a right to information provided under the Freedom of Information Act and the right to know what is going on in the government, guaranteed by the Sunshine in Government Act, to the United States Copyright Act and a host of others. U.S. federal government information policy is synthesized in a document called Office of Management and Budget Circular A-130, which sets forth a number of general principles that government agencies are supposed to apply when dealing with government information: Government information is a valuable national resource. It provides the public with knowledge of the government, society, and economyâpast, present, and future. It is a means to ensure the accountability of government, to manage the 1 Based on a presentation found at http://www.oecd.org/dataoecd/28/0/40047022.pdf 3
4 SOCIOECONOMIC EFFECTS OF PSI ON DIGITAL NETWORKS government's operations, to maintain the healthy performance of the economy, and is itself a commodity in the marketplace. The free flow of information between the government and the public is essential to a democratic society. It is also essential that the government minimize the Federal paperwork burden on the public, minimize the cost of its information activities, and maximize the usefulness of government information. In order to minimize the cost and maximize the usefulness of government information, the expected public and private benefits derived from government information should exceed the public and private costs of the information, recognizing that the benefits to be derived from government information may not always be quantifiable. The nation can benefit from government information disseminated both by Federal agencies and by diverse nonfederal parties, including State and local government agencies, educational and other not-for-profit institutions, and for- profit organizations. Because the public disclosure of government information is essential to the operation of a democracy, the management of Federal information resources should protect the public's right of access to government information. The open and efficient exchange of scientific and technical government information, subject to applicable national security controls and the proprietary rights of others, fosters excellence in scientific research and effective use of Federal research and development funds. In addition to these principles setting forth the importance of public exchange and access to government information, Circular A-130 also contains policies that describe how to avoid restrictive practices. A government agency should avoid establishing or permitting others to have arrangements that are exclusive, restricted, or otherwise interfere with making information available on a timely and equitable basis. That does not imply, however, that a person or entity may not take government information, repackage it, and make it available commercially. Indeed, that is the desired outcomeâ that a variety of products be developed from the underlying government information. But, generally speaking, government information cannot be transferred to one corporation or private entity without also making it available to others. Government agencies also operate with the understanding that public access to government information is important and that they should avoid unnecessary restrictions or regulations limiting such access. For example, an agency must avoid charging a fee or royalties on the reuse, resale, or dissemination of government information. Indeed, Circular A-130 encourages agencies to set user fees for government information products at the marginal cost of dissemination. (The Circular provides that the calculation of user charges must exclude the costs associated with the original collection and processing of the information.) As a result, agencies often post information on the Internet, where the marginal cost of dissemination is zero. The U.S. Copyright Act affects another area of public information policy. Under Section 105 of the copyright law, works created by federal government employees within
OVERVIEW OF US FEDERAL GOVERNMENT INFORMATION POLICY 5 the scope of their employment are part of the public domain. This policy has contributed to the development of a very robust public domain and to the unfettered reuse of information. In fact, the federal government is the largest producer of public domain information in the United States. Another important factor is that in the United States it is not possible to copyright facts or ideas, whether produced by government or in the private sector. This, too, encourages the broad dissemination and reuse of information. The United States recognizes many legal, economic, and other public policy reasons for placing government-generated information in the public domain, subject to conditions of open availability and unrestricted reuse. First, a government entity requires no incentive from exclusive property rights to create information, unlike authors or publishers in the private sector. Second, government-generated information is a public good. The public has already paid for the collection of the information through its taxes, and so it should not have to pay a second time when accessing the information. Third, the democratic values and transparency of government would be undermined by restricting citizens from access to and use of public sector information. Finally, information is not an exhaustible resource. Multiple people can use the same data or information for different purposes, without diminishing the value of the information. Of course, there are some countervailing policies in practice that limit the access to government information. These are generally based on national security concerns and the need to protect personal privacy and confidential information. The government generally protects the proprietary rights of information that has originated from the private sector and been made available for government use. One recent noteworthy development in the area of access to government-funded (as compared to government-produced) information is legislation that was just passed, after several years of development, that applies to research supported by the U.S. National Institutes of Health (NIH). In 2003 the NIH instituted a data-sharing policy that required any recipient of grant funds totaling more than $500,000 in any single year to include with its grant application a data-sharing plan describing how the research data would be disseminated to the public. Subsequently the NIH adopted a policy that requested, but did not require, investigators to submit an electronic version of the final manuscript of whatever study resulted from the publicly funded research to a central repository of the NIH called PubMed Central. In order to further encourage the practice of making this information openly available to the public, the U.S. Congress passed a law in late 2007 that requires researchers to deposit a copy of any journal articles resulting from NIH-funded research to this central database within 12 months of the official date of publication. The goal of the law is to derive the greatest possible socioeconomic benefits from information that has been generated with federal government investment by promoting access to that information to any citizens who can use this research information and to other researchers who are trying to advance particular areas of science or to accelerate innovation. There are many different federal agencies within the United States that provide access to their information. Their policies for information access tend to be mission driven, that is, related to whatever the agency is trying to accomplish. Although there are a number of different areas of emphasis, most federal agencies stress creating an
6 SOCIOECONOMIC EFFECTS OF PSI ON DIGITAL NETWORKS environment that is open and that minimizes barriers to access. As we look at the social and economic impacts of public sector information online, it is important to understand the motivations and the drivers of each agency. To summarize, U.S. policy has a default rule of open availability and reuse of public sector information with the goal of maximizing the benefits of the public investment made in producing that information. Government information is normally placed in the public domain, reflecting a belief in the publicâs right to access and reuse government information. U.S. policy promotes the dissemination of government information at no more than marginal costs as well as balancing the many different interests in adopting any new laws without limiting the publicâs access to public sector information. As Thomas Jefferson, one of the countryâs founding fathers, explained, âInformation is the currency of democracy.â U.S. policy continues to build on this core principle.