[Cross posted on LegalResearchPlus.com]

On a daily basis I visit various court and other government websites, often to locate recent opinions, regulations, or agency decisions. It is a common practice for law librarians and for any researcher who wants very recent sources or does not have access to commercial databases. Admittedly it is far less often that I consider whether the case I just downloaded is an authentic representation of the court’s decision.

But consider these two examples. The first from the California Courts website and the second from the website for the First Circuit Court of Appeals:

“The Official Reports page is primarily intended to provide effective public access to all of California's precedential appellate decisions; it is not intended to function as an alternative to commercial computer-based services and products for comprehensive legal research.”

“Although every effort is made to ensure that the information contained on this site is correct and timely, the First Circuit does not warrant its accuracy. Portions of the information may be incorrect or not current. The information contained on this site should not be cited as legal authority.”

In 2007 the American Association of Law Librarians completed a survey of states' online statutes, regulations and case law to determine which states, if any, were deeming their online material to be official and/or authentic. The survey, “State-by-State Report on Authentication of Online Legal Resources,” is available from the Washington Affairs Office of AALL. Survey authors Richard Matthews and Mary Alice Baish concluded that while many states considered the primary legal material that they put online to be official, no state had taken steps to authenticate those materials.

In a world where online research is becoming the norm, are courts (and other government websites) really keeping up with the needs of the people they serve by not offering official and authenticated versions of their opinions online?

-Kate Wilko

Secret Laws are laws that citizens and even Congress do not know about or are forbidden from seeing.

A recent Senate hearing examines how these "laws" become law and why they are 'repugnant' and 'an abomination.'

The official page for the hearing with links to written testimony and a video of hearing: Secret Law and the Threat to Democratic and Accountable Government, Hearing, Senate Judiciary Committee, Subcommittee on the Constitution, Civil Rights and Property Rights, April 30, 2008.

A brief overview of the hearing by Steven Aftergood with links his and others' to testimony: Secret Law Debated in Senate Hearing, by Steven Aftergood, Secrecy News, April 30, 2008.

A concise op-ed by Senator Russ Feingold about secret laws: Government in secret, By Russ Feingold, Los Angeles Times, May 8, 2008.

OMB Watch Launches Regulatory Resource Center

This from yesterday's email announcing the center:

Today, OMB Watch launched a web-based Regulatory Resource Center at www.ombwatch.org/regresources. The Resource Center provides tips for advocates who want to get involved in regulatory decision making and educational resources for anyone interested in how the federal regulatory process works.

The first part of the Regulatory Resource Center is the Advocacy Center. The Advocacy Center shows users how to comment on federal regulations and provides instructions for using Regulations.gov, the government's portal for public comments. The Advocacy Center also has instructions for filing a petition for rulemaking and tips on how to find rules in the Federal Register.

The second part of the Resource Center is the Policy Library. The Policy Library contains a flowchart showing how rules move through the regulatory pipeline; a list and brief description of rulemaking agencies; background information describing how the regulatory process works from beginning to end; and a glossary of common terms relating to regulation. The Policy Library also has a reference section, which provides links to legislation, executive orders, and government reports on regulatory policy.

The Fastcase Public Library of Law was launched yesterday as "the most comprehensive free resource for legal research online." PLoL claims that it is the largest free law library in the world.  A cursory examination shows an easy to use interface with links to caselaw, statutes, and regulations.  You can look at federal law or choose your state from a dropdown menu.  We'll all have to spend some time trying it out to see if it's a resource we can enthusiastically recommend. 
There are also links to content you have to pay for - legal forms, for example, is one of the main tabs but you have to buy the forms after viewing them.  I'm not crazy about that - But most of the links are free.  Fastcase is a commercial legal research company that specializes in caselaw databases.  Offering free, well-organized legal information is probably a smart business decision too if it builds the name and reputation of your company.  

Creative Commons has announced that in partnership with Public.Resource.Org and with legal representation from the Electronic Frontier Foundation, it has purchased and has now made available at no charge the equivalent of nearly two million pages of legal documents. If printed and piled on top of each other, the documents would make a stack of books 348 feet tall. Included are all U.S. Supreme Court decisions and all Courts of Appeals decisions from 1950 on.
"Though these texts have always technically been in the public domain, the organizations had to purchase the electronic version from a private company that had compiled it. Now available at  this link, they have also been converted to XHMTL so that anyone can develop user interfaces and search engines against the information."

Anyone who has ever had to teach about federal regulations is always thrilled to have good, hopefully entertaining, examples for this topic. And now that instructors have access to the Reg Map, we can actually give a step by step explanation of this once murky process (thank you, General Services Administration). As is the case with legislative process, our students' first question is frequently "How do regulations come about?" We reassuringly tell them that executive agencies produce regulations, frequently due to statutory mandate, and that the regs are published first in the Federal Reqister, now Regulations.gov as well, before being codified in the CFR.  From the Reg Map, we learn that that there are other Initiating Events besides legislative mandate: such as recommendation from an external group.

Well, a recent news article offers a fine example of an external group directly petitioning the federal Executive Branch: environmental organizations are asking both the Environmental Protection Agency and the Consumer Product Safety Commission to more tightly regulate air fresheners. The groups don't need to approach Congress; they can go directly to those agencies whose mission it is to keep us safe.  And since the air freshener industry, a $1.72 billion annual sales concern, is cranking out "sprays, gels and plug-in fresheners offer[ing] no public health benefits" but potentially causing "breathing difficulties, developmental problems in babies, and cancer in laboratory animals," I am glad the groups are taking action.  The groups are asking for labeling of all ingredients in air fresheners and a banning of allergens or items appearing on California's Proposition 65 list of chemicals. Here's a report from the National Resources Defense Council, one of the groups involved.

Carl Malamud (a hero of public access to public information!), who has taken on the SEC, Patents, and Congress and C-Span, is now tackling the 5 million or so pages of federal case law.

• Carl Malamud Takes on WestLaw, by Tim O'Reilly, O'Reilly Radar (08.19.07)
• In Re: State and Federal Cases and Codes Released by Public.Resource.Org as Test Data README FILE (Aug 17, 2007)
• A Quest to Get More Court Rulings Online, and Free By John Markoff New York Times (August 20, 2007)

Carl's short-term goal is the creation of an unencumbered full-text repository of the Federal Reporter, the Federal Supplement, and the Federal Appendix. The medium-term goal is the creation of an unencumbered full-text repository of all state and federal cases and codes.

The Resource Shelf had an entry about “Merriam-Webster’s Word of the Year for 2006”, truthiness. This word is not new as it was voted the 2005 word of the year by the American Dialect Society.

My favorite new word for 2006 came from my work (I work for an aerospace company on a big defense program). A year-end communication from Program Management cautioned us to be wary of mosiacing our presentation content (read: Power Points) prior releasing them to the public. That is, we can’t just re-use content that had already been approved for public release; rather, anything and everything must be submitted to a public release process.

Mosiacing? Was April Fools day coming in December? At my first reading, and after I stopped laughing, I tried to make sense of what mosiacing was and what the authors of the memo had against using plain speech in their communication --instead of introducing this strange, unfamiliar word for a simple concept. I also wasn’t sure if they spelled mosiacing correctly. Could they mean mosaicing, with the “i” and the “a” reversed? And were they borrowing, re-purposing, a word used in a different context (in this case, art and design –as far as I can tell). And does the use of such a word help clarify the meaning of what they’re trying to say? Who knows. I doubt even the authors of the memo even know. The expressionationing of my truthiness over my confusionation to my management was high over their use of mosaicing. The use of the word mosaicing applied to public release of information also cannot be clarified by simple googling (another top word in 2006 according to M-W this year).

It seems making things ‘clear’ or to ‘clarify’ something is a recurring goal for governments, corporations, and big defense programs (my program spends over 3 billion a year). I come across statements about clarifying or making clear something very often in my work. In fact, my work is all about making things clear: I am a policy analyst and deal primarily with Department of Defense IT and information management policies. I read the policy documents (memorandum, DOD Instructions, Directives, etc.) and try to make clear to my managers what is important of those policies in relation to our program.

We strive for clarity: work statements have the word ‘clarity’ appearing often enough to be elevated to the status of a 'power word' --its concept has importance but no 'clear' way to attain it. It seems that just by saying we’re going to be clear, or say we intend to strive for clarity (suggesting that things are currently unclear and not moving toward clarity), we’ll somehow arrive at it, becoming, perhaps, a CMMI Level 5 of Clarity Maturity Organization (that's a joke; there is no CMMI for Clarity that I know of).

Stating a goal of clarity but then getting the opposite result seems typical in all bureaucracies (government, corporate, and that weird hybrid, defense programs). I confess i have made statements like 'we need to clarify the refinement of requirements' or ‘our architectures are made to clarify user needs’ in my email and presentations. The 2006 report on government responses and preparation for Katrina, “Failure of Initiative” has a lot to say about clarity in language and intentions between government to government, and government to citizen.

Are we hopeless? I don't think so. PlainLanguage.gov , started around 1994-95, defines ‘Plain Language’ as

Plain language (also called Plain English) is communication your audience can understand the first time they read or hear it. Language that is plain to one set of readers may not be plain to others. Written material is in plain language if your audience can:
• Find what they need;
• Understand what they find; and
• Use what they find to meet their needs.

In the world of digital government information, the kind I use and enjoy, I seem to get at all three of these bullet points: when I find what I need, it's usually understandable and it usually meets my needs. In the corporate experiences I’ve had, the opposite is true. As corporations do more work in place of government (literally, doing the work of government for a fee), can initiatives like PlainLanguage.gov help? Perhaps. Certainly, a resource like it take us a long way.

A friend of mine in the military, who served recently in the “Eastern Theatre” (Afghanistan/Iraq), told me about a potential personnel crisis for the Army due to its extended mission in Iraq and Afghanistan. My friend said:

"The Army is increasingly turning over duties to civilian contractors, which would normally do routine duties (recruiting, mentoring, military advisers, maintenance, food service, security, etc.). Some even wear the same uniform, although they don't get the same pay, no retirement points, just a civilian job in military uniform. If we counted our civilian hire into military numbers, I suspect the numbers would be approaching previous Desert Storm levels, although at a higher price. Lower pay for the personnel, although higher administrative costs."

What my friend is pointing out may be part of the effects of some of the latest transformation of DoD policy. According to the 2006 issuance of the Quadrennial Defense Review (QDR), Contractors and Civilians are critical to the 21st century warfighting capabilities. The QDR defined the “Total Force” as “Active Component, Reserve Component, civilians and contractors”. This may be nothing new as private companies have often supported military operations in the theatre. But many of us may not be aware that Civilians and Contractors are now factored in as part of our war plans. The Defense Instruction “Contractor Personnel Authorized to Accompany U.S. Armed Forces” (Oct 3, 2005) explains the implementation of this policy.

The Defense Acquisition University (DAU) has some interesting resources on this. Check out the training module, "CLC 112: Contractors Accompanying the Force" (recently modified October 16, 2006). It “…addresses the roles and responsibilities of the Commander in planning for the use of contractors authorized to accompany the U.S. armed forces, with a focus on the guidance in DoDI 3020.41, Contractor Personnel Authorized to Accompany the U.S. Armed Forces”.

Also on the DAU site is the paper “Contractors in the 21st Century "Combat Zone” by Richard L. Dunn for the Center for Public Policy and Private Enterprise School of Public Policy, (uploaded to the DAU site on Wednesday, April 27, 2005). This resources is 117 pages and concludes

"The research found there had been a lag in updating policy and doctrine based on lessons learned and that on occasion a “business as usual” approach has decreased the efficiency of contracted contingency support. Serious deficiencies in organization and training for contingency contracting in support of joint operations persist. Contracting in a stressful environment has demonstrated the inadequacy of certain government contracting procedures."

As the presence of Civilians and Contractors grows in military operations, especially in support of Iraq missions, how to find out about the policies governing their roles and expectations may become more important. For that, a very rich resource on this topic is the "Contractors on the Battlefield Resource Library" available on the Army Sustainment Command: "The purpose of this site is to accumulate and offer materials helpful to the resolution of legal issues arising from the in-theater use of contractor support to military operations."

Can you be required to comply with a government policy or law that is itself secret?

Although we are not allowed to see the law in question, at least we can see the court documents and amicus curiae briefs filed in the court case challenging this situation. See:

• Confronting Secret Law by Steven Aftergood, Secrecy News (November 15, 2006).