[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 3321 Introduced in Senate (IS)]

111th CONGRESS
  2d Session
                                S. 3321

 To establish an advisory committee to issue nonbinding governmentwide 
 guidelines on making public information available on the Internet, to 
require publicly available Government information held by the executive 
 branch to be made available on the Internet, to express the sense of 
 Congress that publicly available information held by the legislative 
  and judicial branches should be available on the Internet, and for 
                            other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 6, 2010

  Mr. Tester introduced the following bill; which was read twice and 
referred to the Committee on Homeland Security and Governmental Affairs

_______________________________________________________________________

                                 A BILL


 
 To establish an advisory committee to issue nonbinding governmentwide 
 guidelines on making public information available on the Internet, to 
require publicly available Government information held by the executive 
 branch to be made available on the Internet, to express the sense of 
 Congress that publicly available information held by the legislative 
  and judicial branches should be available on the Internet, and for 
                            other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Public Online Information Act of 
2010''.

SEC. 2. TABLE OF CONTENTS.

    The table of contents for this Act is as follows:

Sec. 1. Short title.
Sec. 2. Table of contents.
Sec. 3. Definitions.
Sec. 4. Purposes.
Sec. 5. Findings of Congress.
Sec. 6. Establishment of Public Online Information Advisory Committee.
Sec. 7. Executive branch Internet publication mandate.
Sec. 8. Legislative and judicial information.
Sec. 9. Government Printing Office.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Advisory committee.--The term ``advisory committee'' 
        means the Public Online Information Advisory Committee 
        established under section 6.
            (2) Agency.--The term ``agency'' means an executive agency 
        or an independent regulatory agency.
            (3) CIO.--The term ``CIO'' means a chief information 
        officer of an independent regulatory agency.
            (4) Executive agency.--The term ``executive agency'' means 
        any of the following:
                    (A) An executive department, as defined in section 
                101 of title 5, United States Code.
                    (B) A military department, as defined in section 
                102 of such title.
                    (C) A Government corporation, as defined in section 
                103 of such title.
                    (D) Any other establishment in the executive branch 
                of the Government (including the Executive Office of 
                the President), other than an independent regulatory 
                agency.
            (5) Independent regulatory agency.--The term ``independent 
        regulatory agency'' means an independent establishment, as 
        defined in section 104 of title 5, United States Code.
            (6) Record.--The term ``record''--
                    (A) has the meaning provided the term ``records'' 
                in section 3301 of title 44, United States Code; and
                    (B) includes contracts entered into by persons 
                working as agents of the Federal Government, including 
                records in the possession of Government contractors.
            (7) Public record.--The term ``public record'' means any 
        record, regardless of form or format, that an agency discloses, 
        publishes, disseminates, or makes available to the public.
            (8) E-government administrator.--The term ``E-Government 
        Administrator'' means the Administrator of the Office of 
        Electronic Government established under section 3602 of title 
        44, United States Code.

SEC. 4. PURPOSES.

    The purposes of this Act include the following:
            (1) To establish an advisory committee to issue nonbinding 
        guidelines for all three branches of Government regarding 
        making public information available on the Internet, with 
        sufficient flexibility to adapt to changes in technology.
            (2) To empower the E-Government Administrator to establish 
        binding rules concerning making publicly available Government 
        information held by executive agencies to be made available on 
        the Internet, and to empower independent regulatory agencies to 
        do the same.
            (3) To express the sense of Congress that publicly 
        available information held by the legislative and judicial 
        branches should be available on the Internet.
            (4) To encourage the Government Printing Office to make all 
        of its publications available on the Internet in the formats 
        most useful to the public, after having considered the formats 
        identified by the Advisory Committee.

SEC. 5. FINDINGS OF CONGRESS.

    Congress finds the following:
            (1) The Federal Government holds a vast repository of 
        public information. Throughout the history of the United 
        States, the Government has attempted to make that information 
        available to the public, whether through the United States 
        Postal Service, the Federal Depository Library Program, the 
        Presidential Library System, Agency Reading Rooms, under 
        section 552 of title 5, United States Code (commonly referred 
        to as the ``Freedom of Information Act''), or by other means. 
        Providing this information to the general public is a public 
        good: Informed citizens are informed voters. However, even with 
        these efforts, Government information is too often hard to 
        find, difficult to understand, expensive to obtain in useful 
        formats, and available in only a few locations.
            (2) The advent of the Internet presents the opportunity for 
        the Government to make information readily available to many 
        more people in the United States. The Internet is ubiquitous, 
        turning every computer into a portal to the largest library in 
        the world. The Government has made some efforts to take 
        advantage of this new medium. As the public moves online, the 
        Government must do so as well.
            (3) In addition to the traditional means of disseminating 
        public information, the Federal Government should make all of 
        its public information available on the Internet. It should do 
        so in ways that take advantage of modern technology, that 
        anticipate the needs of the public, and that provide access to 
        the greatest number of people. The Government should strive to 
        make its information available on the Internet in real-time and 
        in machine processable formats.
            (4) The creation of this vast new information library will 
        empower citizens of the United States to gain a better 
        understanding of how their Government functions and what it 
        does in their name. It will also give innovators new tools to 
        build on this information and provide better goods and services 
        to the people of the United States. Government services will be 
        provided more efficiently, saving the taxpayers money and 
        allowing them to be more involved in the lives of their 
        communities.
            (5) Accomplishing these goals requires significant 
        coordination. It also requires the creation of new authorities 
        and responsibilities within the Government, and the 
        identification of appropriate technology standards.

SEC. 6. ESTABLISHMENT OF PUBLIC ONLINE INFORMATION ADVISORY COMMITTEE.

    (a) Establishment.--There is established an advisory committee to 
be known as the ``Public Online Information Advisory Committee''.
    (b) Purposes.--The purposes of the Advisory Committee are--
            (1) to coordinate and encourage the efforts of the 
        Government to make Government information from all three 
        branches of Government available on the Internet; and
            (2) to issue nonbinding guidelines on how the Government 
        should make public information available on the Internet, and 
        update the guidelines as appropriate.
    (c) Membership.--
            (1) In general.--The Advisory Committee shall be composed 
        of 19 members (including the Chair), of whom--
                    (A) 6 members shall be appointed by the E-
                Government Administrator;
                    (B) 6 members shall be appointed by the Director of 
                the Administrative Office of the Courts;
                    (C) 3 members shall be appointed by the Chairman, 
                in consultation with the Ranking Member, of the 
                Committee on Homeland Security and Governmental Affairs 
                of the Senate, with not more than 2 members chosen 
                being from the party in the majority of the Senate at 
                the time of appointment; and
                    (D) 3 members shall be appointed by the Chair, in 
                consultation with the Ranking Member, of the Committee 
                on Oversight and Government Reform of the House of 
                Representatives, with not more than 2 members chosen 
                being from the party in the majority of the House of 
                Representatives at the time of appointment.
            (2) Diversity of experience.--The members of the Advisory 
        Committee shall represent a diverse range of perspectives, 
        including members--
                    (A) from non-profit organizations; and
                    (B) with expertise in relevant subject areas.
            (3) Chair.--The Chair shall be appointed by the 
        Administrator of General Services, after conferring with the E-
        Government Administrator, the Director of the Administrative 
        Office of the Courts, the Chairman of the Committee on Homeland 
        Security and Governmental Affairs of the Senate, and the Chair 
        of the Committee on Oversight and Government Reform of the 
        House of Representatives.
            (4) Vice chair.--A Vice Chair shall be selected from among 
        the members of the Advisory Committee by the Chair.
            (5) Limitation on government employee members.--Not more 
        than 6 members of the Advisory Committee may be Government 
        employees.
            (6) Terms of office.--Each member of the Advisory Committee 
        shall be appointed for a renewable term of 5 years, except 
        that--
                    (A) \1/3\ of the members initially appointed shall 
                be appointed for a 3-year term;
                    (B) \1/3\ of the members initially appointed shall 
                be appointed for a 4-year term; and
                    (C) \1/3\ of the members initially appointed and 
                the Chair shall be appointed for a 5-year term.
            (7) Initial appointments.--The initial appointments of 
        members of the Advisory Committee shall be made not later than 
        90 days after the date of the enactment of this Act.
            (8) Meetings.--The Advisory Committee shall meet not less 
        than 6 times per year.
    (d) Powers of Advisory Committee.--
            (1) In general.--From time to time, the Advisory Committee 
        shall--
                    (A) examine its legislative charter, structure, and 
                funding; and
                    (B) make recommendations to Congress, the 
                President, and the Courts regarding how the Advisory 
                Committee could be restructured to better accomplish 
                its mission of making Government information available 
                to the public on the Internet.
            (2) Publication of recommendations.--The recommendations 
        required under paragraph (1) shall be published in print and on 
        the Internet.
            (3) Specific powers.--In order to carry out the purposes 
        described in subsection (b), the Advisory Committee is 
        authorized to--
                    (A) hold hearings;
                    (B) issue recommendations to Congress;
                    (C) issue recommendations to agencies;
                    (D) issue reports, guidelines, and memoranda;
                    (E) articulate guidelines on how the Government 
                should make public records available on the Internet, 
                update the guidelines as appropriate, and inquire into 
                Government compliance with the guidelines;
                    (F) hold or host conferences and symposia;
                    (G) enter into cooperative agreements with outside 
                experts to obtain relevant advice or expertise, and 
                oversee staff;
                    (H) establish subcommittees; and
                    (I) establish rules of procedure.
            (4) Relationship to faca.--The Advisory Committee shall not 
        be subject to the control of any advisory committee management 
        officer designated under section 8(b)(1) of the Federal 
        Advisory Committee Act (5 U.S.C. App.).
    (e) Operations.--
            (1) Open government procedures.--In addition to the rules 
        in the Federal Advisory Committee Act (5 U.S.C. App.), in the 
        interest of improving transparency, the Advisory Committee 
        shall adhere to the following rules that supplement and modify 
        that Act (in accordance with section 4(a) of that Act):
                    (A) Subcommittees shall have the same duties and 
                obligations as the full committee as delineated under 
                sections 10 through 13 of the Federal Advisory 
                Committee Act (5 U.S.C. App.). Subcommittees shall 
                similarly be bound by the terms of this section.
                    (B) All information made available on the Internet 
                shall be done so by state-of-the-art methods that are 
                compatible with widely used, publically available 
                programs and equipment.
                    (C) Information required to be made available on 
                the Internet shall be done so in a timely fashion.
                    (D) Notice of all meetings shall be available on 
                the Web site of the Advisory Committee, with agendas 
                available on the Internet not later than 3 days prior 
                to any meeting.
                    (E) All records available for public copying under 
                section 10 of the Federal Advisory Committee Act (5 
                U.S.C. App.) shall also be made available on the Web 
                site of the Advisory Committee.
                    (F) The Advisory Committee shall make available on 
                the Internet and to any person, at no cost, transcripts 
                of Advisory Committee proceedings.
                    (G) Videos recordings of proceedings shall be made 
                available on the Internet.
                    (H) Documents submitted to the Advisory Committee 
                shall be made publicly available unless the Advisory 
                Committee determines that those materials would 
                disclose matters described in section 552(b) of title 
                5, United States Code.
                    (I) The Advisory Committee shall make publicly 
                available the names and brief biographies of its 
                members.
                    (J) All members of the Advisory Committee shall 
                file financial disclosure forms, which shall be made 
                available on the Advisory Committee Web site after 
                redactions to remove personally identifiable 
                information, such as social security numbers.
                    (K) All members of the Advisory Committee shall 
                have to state and publicly disclose conflicts of 
                interest. These statements shall be updated whenever 
                new conflicts arise or on an annual basis, whichever is 
                more frequent, and shall be published on the Internet.
            (2) Support services.--The General Services Administration 
        shall be responsible for providing all support services to the 
        Advisory Committee, including quarters and staff, and for 
        requesting funds from Congress on behalf of the Advisory 
        Committee.
            (3) Communication with congress.--Nothing in this section 
        shall be construed to prevent the Advisory Committee from 
        communicating with Congress directly regarding funding or other 
        matters.
            (4) Duration.--The Advisory Committee is a continuing body 
        and is not subject to termination as provided in section 14 of 
        the Federal Advisory Committee Act (5 U.S.C. App.).
            (5) Application of faca.--Except as otherwise provided in 
        this section, the Federal Advisory Committee Act (5 U.S.C. 
        App.) shall apply to the Advisory Committee.
    (f) Reports.--The Advisory Committee shall issue a report on its 
activities every 2 years, or as appropriate, whichever is more 
frequent.
    (g) Authorization of Appropriations.--There is authorized to be 
appropriated to the General Services Administration such sums as may be 
necessary for the operations of the Advisory Committee.

SEC. 7. EXECUTIVE BRANCH INTERNET PUBLICATION MANDATE.

    (a) Online Publication Requirements.--
            (1) Free availability.--
                    (A) In general.--Except as provided in subparagraph 
                (B), the Government shall make public records available 
                on the Internet at no charge (including a charge for 
                recovery of costs) to the public.
                    (B) Exception.--Subparagraph (A) shall not apply in 
                the case of a charge imposed by Federal law before the 
                date of the enactment of this Act.
            (2) Permanence.--Public records shall be permanently 
        available on the Internet.
            (3) Current technology.--
                    (A) In general.--Current information technology 
                capabilities shall be applied to the means by which 
                records are made available on the Internet, and the 
                formats in which they are available.
                    (B)  Public accessibility.--Public records shall be 
                made accessible through programs and equipment that are 
                readily available to the general public.
            (4) Searchable list.--
                    (A) In general.--Each agency shall publish on the 
                Internet a comprehensive, searchable, machine 
                processable list of all records it makes publicly 
                available.
                    (B) Requirements.--With respect to the records 
                described in subparagraph (A), the list shall include, 
                at a minimum--
                            (i) where the records can be found;
                            (ii) whether the records are available to 
                        the public at no cost or for a fee (and the 
                        amount of the fee, if applicable); and
                            (iii) brief descriptions of the records.
    (b) Rulemaking Authority.--
            (1) In general.--Nothing in the grant of authority in this 
        subsection shall be construed to limit the obligation of the 
        Government to make records publicly available as required by 
        law.
            (2) Executive agencies.--
                    (A) Responsibilities of the director of omb.--
                            (i) In general.--The Director of the Office 
                        of Management and Budget shall delegate to the 
                        E-Government Administrator the authority to 
                        administer all functions under this section, 
                        except that any such delegation shall not 
                        relieve the Director of responsibility for the 
                        administration of such functions.
                            (ii) Staffing.--The Director of the Office 
                        of Management and Budget shall ensure that the 
                        E-Government Administrator has adequate staff 
                        and resources to properly fulfill all the 
                        functions of the Administrator under this Act.
                    (B) Rulemaking.--
                            (i) In general.--The E-Government 
                        Administrator, after consulting with the Office 
                        of Information and Regulatory Policy, shall 
                        promulgate such regulations as are necessary to 
                        ensure that all public records held by 
                        executive agencies are available on the 
                        Internet in the formats and by the means the E-
                        Government Administrator designates.
                            (ii) Consideration of guidelines.--In 
                        promulgating the regulations required under 
                        clause (i), the E-Government Administrator 
                        shall consider the guidelines issued by the 
                        Advisory Committee.
                    (C) Rulemaking requirements.--In the regulations 
                promulgated under subparagraph (B), the E-Government 
                Administrator shall include--
                            (i) rules on how executive agencies shall 
                        publish records on the Internet, including the 
                        format and timeframe; and
                            (ii) procedures through which executive 
                        agencies may object to placing public records 
                        on the Internet, in accordance with the 
                        exceptions under paragraph (4), and a method by 
                        which the objections can be reviewed.
                    (D) Additional availability of records.--
                            (i) In general.--The regulations 
                        promulgated under subparagraph (B) shall not 
                        preclude executive agencies from making 
                        additional records available on the Internet 
                        beyond those required by the regulations, or in 
                        additional formats beyond those required by the 
                        regulations, or on a more rapid timeframe than 
                        required by the regulations.
                            (ii) Designation of responsibility.--Each 
                        head of an executive agency shall designate a 
                        person within the agency responsible for 
                        Internet publication of public records.
            (3) Independent regulatory agencies.--
                    (A) Rulemaking.--
                            (i) In general.--A CIO or an official 
                        designated by the head of an independent 
                        regulatory agency shall promulgate such 
                        regulations as are necessary to ensure that 
                        public records are available on the Internet in 
                        the formats and by the means the CIO 
                        designates.
                            (ii) Consideration of guidelines.--In 
                        promulgating the regulations required under 
                        clause (i), the CIO or other official shall 
                        consider the guidelines issued by the Advisory 
                        Committee, as well as regulations promulgated 
                        by the E-Government Administrator under 
                        paragraph (1).
                    (B) Additional availability of records.--The 
                regulations promulgated under subparagraph (A) shall 
                not preclude the heads of offices within an independent 
                regulatory agency from making additional records 
                available on the Internet beyond those required by the 
                regulations, or in additional formats beyond those 
                required by the regulations, or on a more rapid 
                timeframe than required by the regulations.
                    (C) Staffing.--The head of the independent 
                regulatory agency shall ensure that the CIO or the 
                official designated by the head of the independent 
                regulatory agency has adequate staff and resources to 
                properly fulfill all of the functions of the CIO under 
                this Act.
            (4) Exceptions.--
                    (A) In general.--The regulations promulgated under 
                this subsection may contain exceptions, in accordance 
                with this paragraph, to the requirement that all public 
                records be made available on the Internet.
                    (B) Scope of exceptions.--The exceptions may be no 
                broader than the exceptions recognized under section 
                552 of title 5, United States Code.
                    (C) Additional exceptions by request.--In addition 
                to the exceptions provided under subparagraph (B), the 
                regulations shall provide for the E-Government 
                Administrator or, in the case of an independent 
                regulatory agency, the CIO or official designated by 
                the head of the agency, to grant narrow case-by-case 
                exceptions to the Internet publication requirement if 
                an agency requests an exception and the agency 
                demonstrates that--
                            (i) there is clear and convincing evidence 
                        that the record should not be made available on 
                        the Internet; and
                            (ii) on balance, the harm caused by 
                        disclosure significantly outweighs the interest 
                        of the public in having the record available on 
                        the Internet.
                    (D) Availability of segregable portions.--
                            (i) In general.--If the E-Government 
                        Administrator, CIO, or official designated by 
                        the head of an independent regulatory agency 
                        approves a request for an exception with 
                        respect to a public record under this 
                        paragraph, any reasonably segregable portion of 
                        the public record shall be made available on 
                        the Internet in a timely fashion after 
                        redaction of the portions that are subject to 
                        the exception.
                            (ii) Publication of amount of redacted 
                        information.--The amount of information 
                        redacted shall be indicated on the portion of 
                        the record that is made available on the 
                        Internet, unless including that indication 
                        would significantly harm the interest protected 
                        by the exception, and, if technically feasible, 
                        the amount of the information redacted shall be 
                        indicated at the place in the record where such 
                        redactions are made.
                    (E) Disclosure of withheld records.--The E-
                Government Administrator, CIO, or official designated 
                by the head of an independent regulatory agency shall--
                            (i) maintain a list of records not made 
                        available on the Internet by reason of an 
                        exception under this section; and
                            (ii) publish the list on the Internet, 
                        excluding any records the identification of 
                        which would significantly harm the interest 
                        protected by the exception.
            (5) Publication.--Regulations promulgated under this 
        subsection shall be published--
                    (A) in the Federal Register; and
                    (B) on the relevant agency Web site.
            (6) Applicability.--Regulations promulgated under this 
        subsection shall apply only to public records generated, 
        updated, or released after the date of the enactment of this 
        Act.
            (7) Effective date.--Regulations promulgated under this 
        subsection shall take effect not earlier than 3 years after the 
        date of the enactment of this Act.
    (c) Reports to Congress.--
            (1) In general.--Not less than once every 4 years, the E-
        Government Administrator and each CIO shall--
                    (A) review the exceptions provided under subsection 
                (b)(4) to making public records available on the 
                Internet; and
                    (B) if warranted, make recommendations to the 
                President and to Congress regarding whether Federal law 
                should be changed.
            (2) Publication.--The reports required under paragraph (1) 
        shall be made publicly available, including being published on 
        the Internet.
    (d) Inspector General Reviews.--
            (1) In general.--Not less than once every 4 years, the 
        Inspector General of each agency shall conduct periodic reviews 
        regarding compliance by the agency with Internet publication 
        requirements.
            (2) Publication.--The reviews required under paragraph (1) 
        shall be published on the Internet.
    (e) Enforcement of Public Access by Private Individuals or 
Organizations.--
            (1) Requests.--
                    (A) In general.--Private individuals or 
                organizations may request that an agency place public 
                records on the Internet, including the comprehensive 
                searchable list of publicly available records referred 
                to in section 7(a)(4), in accordance with Federal 
                regulations.
                    (B) Response required within 30 days.--An agency 
                has 30 days to respond to a request made under 
                subparagraph (A) in writing or to place the record on 
                the Internet.
                    (C) Denial of request.--If an agency denies the 
                request in whole or in part, the private individual or 
                organization may file a complaint in Federal court.
            (2) Jurisdiction.--
                    (A) In general.--On complaint filed under paragraph 
                (1)(C), the district court of the United States in the 
                district in which the complainant resides, or has his 
                principal place of business, or in which the agency 
                records are situated, or in the District of Columbia, 
                has jurisdiction to--
                            (i) enjoin the agency from refusing to 
                        publish agency records on the Internet, or 
                        refusing to publish it in an appropriate 
                        format; and
                            (ii) order the Internet online publication 
                        of any agency records improperly withheld.
                    (B) De novo review.--In a case brought under 
                paragraph (1)(C), the court shall determine the matter 
                de novo, and may examine the contents of such agency 
                records in camera to determine whether such records or 
                any part thereof shall be withheld under any of the 
                exceptions provided under subsection (b)(4), and the 
                burden is on the agency to sustain its action.
                    (C) Filing deadline.--Notwithstanding any other 
                provision of law, the defendant shall serve an answer 
                or otherwise plead to any complaint made under this 
                subsection within 30 days after service upon the 
                defendant of the pleading in which such complaint is 
                made, unless the court otherwise directs for good cause 
                shown.
            (3) Attorney fees.--In any case brought under this 
        subsection in which the complainant has substantially 
        prevailed, the court may assess against the United States--
                    (A) reasonable attorney fees; and
                    (B) other litigation costs reasonably incurred.
            (4) Special counsel.--
                    (A) In general.--A Special Counsel shall promptly 
                initiate a proceeding to determine whether disciplinary 
                action is warranted against the officer or employee who 
                was primarily responsible for the withholding if a 
                court--
                            (i) orders the production of any agency 
                        records improperly withheld from the 
                        complainant and assesses against the United 
                        States reasonable attorney fees, litigation 
                        costs, and interest under this subsection; and
                            (ii) issues a written finding that the 
                        circumstances surrounding the withholding raise 
                        questions whether agency personnel acted 
                        arbitrarily or capriciously with respect to the 
                        withholding.
                    (B) Findings and recommendations.--A Special 
                Counsel, after investigation and consideration of the 
                evidence submitted under subparagraph (A), shall--
                            (i) submit findings and recommendations 
                        based on the evidence to the administrative 
                        authority of the agency concerned; and
                            (ii) send copies of the findings and 
                        recommendations to the officer or employee or 
                        his representative described in subparagraph 
                        (A).
                    (C) Corrective action.--The administrative 
                authority described in subparagraph (B) shall take the 
                corrective action that the Special Counsel recommends.
            (5) Contempt.--In the event of noncompliance with the order 
        of the court issued under this subsection, the district court 
        may punish for contempt the responsible employee, and in the 
        case of a uniformed service, the responsible member.

SEC. 8. LEGISLATIVE AND JUDICIAL INFORMATION.

    It is the sense of Congress that judicial and legislative agencies 
(within the meaning of section 3701 of title 31, United States Code) 
should adopt or adapt the recommendations of the Advisory Committee for 
their own use. In addition, judicial and legislative agencies are 
encouraged to consider the guidelines issued by the Advisory Committee 
and the regulations promulgated by the E-Government Administrator.

SEC. 9. GOVERNMENT PRINTING OFFICE.

    It is the sense of Congress that the Government Printing Office 
should make all of its publications permanently available on the 
Internet in a multiplicity of formats that best meet the needs of the 
public. In doing so, the Government Printing Office is strongly 
encouraged to consider the recommendations of the Advisory Committee 
and the E-Government Administrator.
                                 <all>