Public Online Information Act Introduced in Senate

5/18/2010

On May 6, Sen. John Tester (D-MT) introduced the Public Online Information Act (POIA) (S. 3321) to require the federal government to post currently available public information on the Internet. Although this legislation would increase the amount of federal information that is posted online, some open government groups have concerns regarding certain provisions in the bill.

According to Tester, the purpose of POIA is to "make sure that transparency is keeping up with online technology." POIA seeks to ensure faster and more complete access to records held by the executive branch. To accomplish this, the bill requires federal agencies to post public government records on the Internet. This includes records such as reports disclosing lobbying activities and filings by high-level government officials concerning their financial interests.

The bill would impose several specific mandates on federal agencies. The bill first requires agencies to establish clear accountability by appointing a designated person to be responsible for implementation of the law. The bill also requires agencies to provide for permanent online access to the public records they post, so that once posted, the records cannot be removed at a later time. Rulemaking authority on the format of published records and the publication timeframe is granted to the E-Government Administrator at the Office of Management and Budget (OMB).

Each agency would also be required to publish on the Internet a comprehensive, searchable, machine-readable list of all records it makes publicly available. This list must include a description of the records, where they can be found, and whether the records are available to the public at no cost or for a fee. Agencies must also maintain a list of records not made available on the Internet and must publish that list online.

In addition to making most public records permanently available on the Internet, the bill would also establish an advisory board to determine best practices. The board would consist of 19 members with five-year, renewable terms. The board members would represent a range of perspectives, including those from nonprofit organizations and relevant subject areas, with not more than six government employee members. The board would meet at least six times per year and would provide recommendations on how to make public records available on the Internet. The bill also mandates that the E-Government Administrator take the recommendations of the committee into consideration in its rulemaking process.

The bill requires the board to publish transcripts, documents, and any video recordings of its proceedings pursuant to the Federal Advisory Committee Act (FACA). The bill further requires that it publish a report on its activities at least every two years.

The legislation is limited to posting public information online, and it provides an exception to its posting requirements. The bill is clear than any information that is withheld under the Freedom of Information Act (FOIA), for reasons such as privacy, national security, and confidential business information, shall not be made available online. For information that is public, whether through FOIA or other means, another provision in the bill allows agencies to petition the E-Government Administrator at OMB (or, if an independent agency, the appropriate designated agency official) to prevent online disclosure when they can present "clear and convincing evidence" demonstrating "harm of disclosure significantly outweigh[ing] the public’s interest." The bill does not state why certain information, not covered by any of the standard FOIA exemptions, may be harmful if disclosed on the Internet.

The Senate bill was preceded by similar legislation (H.R. 4858) introduced in the House on March 16 by Rep. Steve Israel (D-NY) and cosponsored by Rep. Jared Polis (D-CO). The bills contain some key differences but are similar overall. The House bill does not define the membership of the advisory committee to include nonprofit organizations and area experts. The Senate bill expands the House bill’s definition of records that must be made available on the Internet to include the contracts for those entities acting as agents of the government and the records of such government contractors. Further, the Senate bill expands the limitation on agencies seeking exemptions to posting records on the Internet by requiring "clear and convincing evidence" as opposed to a "clear and convincing reason" in the House bill.

Although the aim of the bills is simple, the exception provisions may complicate their overall mission to make government more open. Open government groups have been divided on this issue. The Sunlight Foundation has consistently referred to the exceptions in the bill as "commonsense" measures. However, other groups argue that they legitimize an unproven idea that information can be public but not releasable for online publication. Patrice McDermott of OpenTheGovernment.org told OMB Watch that the "provisions in POIA cause some concern in the government openness community by presuming a need that has not been clearly proven to exist."

Such exceptions to online publication, while extremely rare, are not entirely unprecedented. The one clear example is in the Chemical Safety Information, Site Security, and Fuels Regulatory Relief Act (CSISFRA) of 1999, which restricts public access to certain Risk Management Program (RMP) information. RMP data is collected under amendments to the Clean Air Act to inform the public about safety risks at chemical facilities throughout the United States. Under CSISFRA, the Off-Site Consequence Analysis (OCA) section of RMP information, also known as the worst-case scenario, is prohibited from electronic distribution and only available through public reading rooms. However, even though this restriction was limited to only one section, since shortly after the Sept. 11, 2001, terrorist attacks, none of the RMP data has been available on any federal websites. OMB Watch has argued against this for years, because the public safety interest rests in disclosure since no threat has been proven. Additionally, OMB Watch has continued to publish RMP data without interruption since 2000.

As was learned in the aftermath of the 9/11 terrorist attacks, even when federal agencies remove public information from agency websites, such information surfaces on non-government websites. Once information is public, it will likely make its way to the Internet, regardless of agency actions.

Neither bill defines the threshold of a "clear and convincing reason" or "clear and convincing evidence," nor do the bills define what is meant by "harm." However, Steven Aftergood of the Federation of American Scientists noted to OMB Watch that the impact of the exception may, in the end, be negligible. Aftergood stated, "Personally, I can’t think of a justifiable exception, because I cannot conceive of a category of government information that would be subject to FOIA but that should also be kept offline on policy grounds." Overall, Aftergood asserted that the bill is still positive from a public access standpoint because it places the burden on agencies "to justify any departure from the norm of online publication."

The House bill was referred to the Committee on Oversight and Government Reform the same day as its introduction. A coalition of organizations quickly released a letter concerning POIA that called for hearings to explore the implications of the bill, but none have occurred, and it is unknown whether any will be scheduled. The Senate bill has been referred to the Homeland Security and Governmental Affairs Committee. It is unclear if either chamber will move soon on the legislation.

Editor's note: This article has been updated since its original posting date to clarify how FACA impacts the proposed 19-member advisory board.