[Libs-Or] [Fwd: [ALACOUN:12765] Destruction of Government Documents]

[Diedre Conkling]

For those of you that don't want to open the attachment on Keith Fiels message here it is, but not a nicely formated:

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Removal of Materials From Depository Libraries

TALKING POINTS
Main message
Even though the DOJ is acting within its legal rights in requesting withdrawal and destruction, the ?internal use? rational just doesn?t make sense since much of this information has been publicly available on the agency?s own Web site for years.  Why is this happening, and why now?  These are important questions Congress and the public should be asking.

Fewer than 30 tangible items have been pulled from the Federal Depository Library Program since 1995, out of a total of a quarter of a million titles disseminated. Most of these have concerned erroneous or outdated materials.

What is the ALA doing?
The Washington Office has attempted to contact the Department of Justice to discuss this matter and will be meeting with Hill staff on this issue.

What should libraries do now?
Should the library or a library user question withdrawal, a legal mechanism for obtaining a formal agency review would involve making a Freedom of Information Act request for the withdrawn document.  This places the burden on the agency to justify nondisclosure in a process that could lead to a judicial proceeding.

There is a risk to the Federal Depository Library Program if the Superintendent of Documents (SuDocs) or participating depository libraries do not comply with an agency request to remove selected information resources. If there is a sense that libraries will not comply with the "rules of the road" of the FDLP, agencies may in turn not comply with requirements to place resources in the Program.


BACKGROUND
In June 2004, the Department of Justice asked the Superintendent of Documents to instruct depository libraries to destroy all copies of five publications. In July, the Superintendent of Documents conveyed this request to federal depository libraries, instructing them to ?withdraw these materials immediately and destroy them by any means to prevent disclosure of their contents? because ?the Department of Justice has determined that these materials are for internal use only.?

The five publications include:
the annotated text of a public law ?  Civil Asset Forfeiture Reform Act of 2000 (CAFRA) [PL no. 106-185, 114 Stat. 202 (2000)] and a compilation of Select Federal Asset Forfeiture Statute. 
two forms:  Select Criminal Forfeiture Forms; a directory, and Asset forfeiture and money laundering resource directory -- an older version of which is on the Department Web site;
and a procedure manual -- Civil and Criminal Forfeiture Procedure.

GPO followed proper form and procedure with this request. The Office of the Superintendent of Documents has no ability to deny withdrawal requests from federal agencies.

The Government Printing Office Instructions to Depository Libraries [Revised 2000 (p. 20)] states:
>From time to time, the Superintendent of Documents will ask depositories to return a specific publication to GPO, or destroy it, because it is defective, or for other reasons. A letter from the Superintendent of Documents will be placed in shipment boxes and will also appear in Administrative Notes. Libraries must comply with such requests before the GPO deadline. 
http://www.access.gpo.gov/su_docs/fdlp/pubs/instructions/index.html

Fewer than 30 tangible items have been pulled from the Federal Depository Library Program since 1995, out of a total of a quarter of a million titles disseminated. Most of these have concerned erroneous or outdated materials.

The agency also is within its legal rights to request withdrawal of its own materials. The materials disseminated by the Government Printing Office to Federal Depository Libraries are deposited by federal agencies, which retain ownership of the materials. Each agency retains the right to ask for the withdrawal and return, or withdrawal and destruction, of that agency?s documents.

Title 44, Chapter 19 (Section 1902) states that 
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.

An agency can make a determination that a publication ? even after distributed to FDLs ? is required for "official use only? or "internal use only? and conclude that such publication should be removed from those libraries. As there is no legal definition of ?official use only,? or ?internal use? in the statutes, agencies are effectively unfettered in their ability to request that a depository item be withdrawn from public access.

There is no formal procedure available, either at the agencies or at GPO, for challenging or appealing an agency withdrawal decision. SuDocs ordinarily will engage in a discussion with the responsible agency official before notifying libraries of the withdrawal.

For a more detailed analysis see: Removal or Destruction of Federal Depository Library Documents http://www.arl.org/info/frn/nsletter/Susman.html prepared for the Association of Research Libraries by Thomas Susman of Ropes & Gray.

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