II 112th CONGRESS 1st Session S. 717 IN THE SENATE OF THE UNITED STATES April 4, 2011 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.

1.

Short title

This Act may be cited as the Public Online Information Act of 2011.

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.

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.

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.

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.

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 website 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 website 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 website 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.

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 website. (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.

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.

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.