Free for All, But Never All for Free

by Paul Gatz & Susan Azyndar

The original idea for this post came from its co-author, Susan Azyndar. Susan is a reference librarian and adjunct professor at the Ohio State University’s Moritz College of Law.

Legislative histories are notoriously complex. Researchers do not always understand the legislative process, and changes in that process can introduce new types of documents. The sheer volume of information related to a given bill may be overwhelming, especially as many legislative history documents are not available online. Codes present one useful tool for tracking legislative history, so it often makes sense to start with the history notes or credits offered in a code.

Unless that code lists incomplete information, as we discovered when a student came to our reference desk asking how to find legislative history documents cited in the free online Ohio Revised Code (ORC) linked to from the Ohio General Assembly’s website. The history information presented in the free resource listed only two amending pieces of legislation for the statute at issue, one in 2010 and one in 2011. Separately listed “Effective Date” references came from 2000, 2004, and “200 [sic]”. When we turned to Westlaw, we discovered the law was first enacted in 1972 and has been amended 9 times – in the 80’s and 90’s as well as in this century.  And the 200 effective date should read 2011.

20161014_125236

Senate floor debate, ca. 200 CE.

Why this discrepancy? As intrepid librarians, we reached out to LaWriter, the company hosting the free ORC, who did not provide an explanation. An email to ORALL, our AALL chapter, did not yield any insights. There was no explanation of the purpose of the “Amended by” or “Effective Date” information in the free online resources.

The data looks like a legislative history, and the citations provided will lead to parts of the legislative history. But it is not a complete legislative history, and therefore could mislead researchers, especially those who miss the signals of incompleteness. The “200” year and attention to only amendments may have alerted a more experienced legislative history researcher to look elsewhere.

It is worth noting that there are no indications that the text of the statutes in the free online ORC are in any way incomplete or corrupted, although it is equally worth noting that Ohio has yet to pass the Uniform Electronic Legal Material Act (all credit to state Senators Michael J. Skindell and William Seitz for introducing it in the previous General Assembly). Regardless, it should be obvious that, from the point of view of a lawyer or law student seeking the legislative history of a statute, the free online version of the ORC is woefully inadequate.

As librarians and teachers of legal research, we should be concerned about the discrepancy. After all, resources that come from a dot-gov domain suffix are generally expected to be credible and authoritative, and many of us encourage our students to use these sorts of websites, especially if we want them to develop cost-effective research skills. Clearly, we must be more circumspect in our recommendations of how to use these sources.

Westlaw, on the other hand, is not necessarily the thriftiest option for your legal research needs, but it does carry a patina of reliability due to its longstanding, historical role in publishing legal materials. Of course, they’re not perfect either, but, in this case and many others, the researcher can feel justified in relying on what can be found on West just as if they were the official publisher, which, in several states, they are.

Is this then, the future of legal information? – navigating between a Scylla of incomplete and perhaps inaccurate information available for free on the open web and a Charybdis of high quality, but highly priced, information locked behind the subscription gates of a multinational corporation? Maybe, maybe not, but either way, it is a future that we must prepare our students for.

And the limitations of the free online ORC offer a perfect opportunity to introduce our students to the informed skepticism that’s at the heart of information literacy, leading them to notice that even otherwise reliable online information sources can come up short and that Google is only as good as the content it retrieves. Our goal as instructors should be to enable our students to apply the same critical and analytical thinking to legal information as they do to the doctrinal law covered in their substantive courses. Demonstrating instances in which a faith in online resources is betrayed is one way of adjusting default settings.

This message is one that our students may be increasingly ready to hear. The flip-side of the growing omnipresence of the information-rich world of the internet is that the online world itself becomes more familiar, less new. The appeal to novelty that fuels uncritical acceptance of content on the internet may begin to wear off. Widespread discussions of fake news in the wake of the 2016 election perhaps indicate a move in this direction.

Our students may already be primed to see the online world as a fragmented landscape of dead ends and blind alleys, but they still require guidance in how to understand and navigate that world. As information professionals and legal research instructors, we must provide them with the analytical frameworks to make sense of the world of online information and the critical skills to evaluate it. With those tools in hand, they will be neither surprised nor unaware of problems like the lack of complete source notes on the free online ORC. They’ll take note of the oddity, consult the code in a different format, and confidently make an informed judgment.

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About Paul Gatz

Paul Gatz is a reference librarian and adjunct professor at The Ohio State University Moritz College of Law.
This entry was posted in Information Literacy, Legal Research Instruction, Legislative history and tagged , , . Bookmark the permalink.

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