II 114th CONGRESS 2d Session S. 2852 IN THE SENATE OF THE UNITED STATES April 26, 2016 Mr. Schatz (for himself and Mr. Sasse ) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs A BILL To expand the Government’s use and administration of data to facilitate transparency, effective governance, and innovation, and for other purposes.

1. Short title; table of contents (a) Short title This Act may be cited as the Open, Public, Electronic, and Necessary Government Data Act or the OPEN Government Data Act . (b) Table of contents The table of contents for this Act is as follows: Sec. 1. Short title; table of contents. Sec. 2. Findings; agency defined. Sec. 3. Rule of construction. Sec. 4. Federal information policy definitions. Sec. 5. Requirement for making open and machine-readable the default for Government data. Sec. 6. Responsibilities of the Office of Electronic Government. Sec. 7. Data inventory and planning. Sec. 8. Technology portal. Sec. 9. Enhanced responsibilities for chief information officers and chief information officers council duties. Sec. 10. Evaluation of agency analytical capabilities. Sec. 11. Effective date. 2. Findings; agency defined (a) Findings The Congress finds the following: (1) Federal Government data is a valuable national resource. Managing Federal Government data to make it open, available, discoverable, and useable to the general public, businesses, journalists, academics, and advocates promotes efficiency and effectiveness in Government, creates economic opportunities, promotes scientific discovery, and most importantly, strengthens our democracy. (2) Maximizing the usefulness of Federal Government data that is appropriate for release rests upon making it readily available, discoverable, and usable—in a word: open. Information presumptively should be available to the general public unless the Federal Government reasonably foresees that disclosure could harm a specific, articulable interest protected by law or the Federal Government is otherwise expressly prohibited from releasing such data due to statutory requirements. (3) The Federal Government has the responsibility to be transparent and accountable to its citizens. (4) Data controlled, collected, or created by the Federal Government should be originated, transmitted, and published in modern, open, and electronic format, to be as readily accessible as possible, consistent with data standards imbued with authority under this Act and to the extent permitted by law. (5) The effort to inventory Government data will have additional benefits, including identifying opportunities within agencies to reduce waste, increase efficiencies, and save taxpayer dollars. As such, this effort should involve many types of data, including data generated by applications, devices, networks, and equipment, which can be harnessed to improve operations, lower energy consumption, reduce costs, and strengthen security. (6) Communication, commerce, and data transcend national borders. Global access to Government information is often essential to promoting innovation, scientific discovery, entrepreneurship, education, and the general welfare. (b) Agency defined In this Act, the term agency has the meaning given that term in section 3502 of title 44, United States Code, and includes the Federal Election Commission. 3. Rule of construction Nothing in this Act, or the amendments made by this Act, shall be construed to require the disclosure of information or records that are exempt from public disclosure under section 552 of title 5, United States Code. 4. Federal information policy definitions Section 3502 of title 44, United States Code, is amended— (1) in paragraph (13), by striking ; and at the end and inserting a semicolon; (2) in paragraph (14), by striking the period at the end and inserting a semicolon; and (3) by inserting at the end the following new paragraphs: (15) the term data means recorded information, regardless of form or the media on which the data is recorded; (16) the term data asset means a collection of data elements or data sets that may be grouped together; (17) the term Enterprise Data Inventory means the data inventory developed and maintained pursuant to section 3523; (18) the term machine-readable means a format in which information or data can be easily processed by a computer without human intervention while ensuring no semantic meaning is lost; (19) the term metadata means structural or descriptive information about data such as content, format, source, rights, accuracy, provenance, frequency, periodicity, granularity, publisher or responsible party, contact information, method of collection, and other descriptions; (20) the term nonpublic data asset — (A) means a data asset that may not be made available to the public for privacy, security, confidentiality, regulation, or other reasons as determined by law; and (B) includes data provided by contractors that is protected by contract, license, patent, trademark, copyright, confidentiality, regulation, or other restriction; (21) the term open format means a technical format based on an underlying open standard that is— (A) not encumbered by restrictions that would impede use or reuse; and (B) based on an underlying open standard that is maintained by a standards organization; (22) the term open Government data means a Federal Government public data asset that is— (A) machine-readable; (B) available in an open format; and (C) part of the worldwide public domain or, if necessary, published with an open license; (23) the term open license means a legal guarantee applied to a data asset that is made available to the public that such data asset is made available— (A) at no cost to the public; and (B) with no restrictions on copying, publishing, distributing, transmitting, citing, or adapting; and (24) the term public data asset means a collection of data elements or a data set maintained by the Government that— (A) may be released; or (B) has been released to the public in an open format and is discoverable through a search of Data.gov. . 5. Requirement for making open and machine-readable the default for Government data (a) Amendment Subchapter I of chapter 35 of title 44, United States Code, is amended by adding at the end the following new section: 3522. Requirements for Government data (a) Machine-Readable data required Government data assets made available by an agency shall be published as machine-readable data. (b) Open by default When not otherwise prohibited by law, Government data assets shall— (1) be available in an open format; and (2) be available under open licenses. (c) Open license or worldwide public domain dedication required When not otherwise prohibited by law, Government data assets published by or for an agency shall be made available under an open license or, if not made available under an open license and appropriately released, shall be considered to be published as part of the worldwide public domain. (d) Innovation Each agency may engage with nongovernmental organizations, citizens, non-profit organizations, colleges and universities, private and public companies, and other agencies to explore opportunities to leverage the agency’s public data asset in a manner that may provide new opportunities for innovation in the public and private sectors in accordance with law and regulation. . (b) Technical and conforming amendment The table of sections for subchapter I of chapter 35 of title 44, United States Code, is amended by adding at the end the following new item: Sec. 3522. Requirements for Government data. . (c) Effective date The amendments made by subsections (a) and (b) shall take effect 270 days after the date of the enactment of this Act and shall apply with respect to any contract entered into by an agency on or after such effective date. (d) Use of open data assets Not later than 270 days after the date of the enactment of this section, the head of each agency shall ensure that any activities by the agency or any new contract entered into by the agency meet the requirements of section 3522 of title 44, United States Code, as added by subsection (a). 6. Responsibilities of the Office of Electronic Government (a) Coordination of Federal information resources management policy Section 3503 of title 44, United States Code, is amended by adding at the end the following new subsection: (c) Coordination of Federal information resources management policy The Administrator of the Office of Information and Regulatory Affairs shall work with the Federal Chief Information Officer and with the heads of other offices within the Office of Management and Budget to oversee and advise the Director on Federal information resources management policy. . (b) Authority and functions of Director Section 3504(h) of title 44, United States Code, is amended— (1) in paragraph (1), by inserting , the Federal Chief Information Officer, after the Director of the National Institute of Standards and Technology ; (2) in paragraph (4)— (A) in subparagraph (A), by striking ; and and inserting a semicolon; and (B) by inserting at the end the following new subparagraph: (C) oversee the completeness of the Enterprise Data Inventory and the extent to which the agency is making all data collected and generated by the agency available to the public in accordance with section 3523; ; (3) in paragraph (5), by striking the period at the end and inserting ; and ; and (4) by inserting at the end the following new paragraph: (6) coordinate the development and review of Federal information resources management policy by the Administrator of the Office of Information and Regulatory Affairs and the Federal Chief Information Officer. . (c) Change of name of the Office of Electronic Government (1) Definitions Section 3601 of title 44, United States Code, is amended— (A) by striking paragraph (1); (B) by redesignating paragraphs (2) through (4) as paragraphs (1) through (3), respectively; and (C) by inserting after paragraph (3), as so redesignated, the following new paragraph: (4) Federal Chief Information Officer means the Federal Chief Information Officer of the Office of the Federal Chief Information Officer established under section 3602; . (2) Office of the Federal Chief Information Officer Section 3602 of title 44, United States Code, is amended— (A) in the heading, by striking Electronic Government and inserting the Federal Chief Information Officer ; (B) in subsection (a), by striking Office of Electronic Government and inserting Office of the Federal Chief Information Officer ; (C) in subsection (b), by striking an Administrator and inserting a Federal Chief Information Officer ; (D) in subsection (c), by striking The Administrator and inserting The Federal Chief Information Officer ; (E) in subsection (d), by striking The Administrator and inserting The Federal Chief Information Officer ; (F) in subsection (e), by striking The Administrator and inserting The Federal Chief Information Officer ; (G) in subsection (f)— (i) by striking the Administrator shall and inserting the Federal Chief Information Officer shall ; and (ii) in paragraph (16), by striking the Office of Electronic Government and inserting the Office of the Federal Chief Information Officer ; and (H) in subsection (g), by striking the Office of Electronic Government and inserting the Office of the Federal Chief Information Officer . (3) Chief Information Officers Council Section 3603 of title 44, United States Code, is amended— (A) in subsection (b)(2), by striking The Administrator of the Office of Electronic Government and inserting The Federal Chief Information Officer ; (B) in subsection (c)(1), by striking The Administrator of the Office of Electronic Government and inserting The Federal Chief Information Officer ; and (C) in subsection (f)(3), by striking the Administrator and inserting the Federal Chief Information Officer . (4) E-Government fund Section 3604 of title 44, United States Code, is amended— (A) in subsection (a)(2), by striking the Administrator of the Office of Electronic Government and inserting the Federal Chief Information Officer ; (B) in subsection (b), by striking Administrator , each place it appears, and inserting Federal Chief Information Officer ; and (C) in subsection (c), by striking the Administrator and inserting the Federal Chief Information Officer . (5) Program to encourage innovative solutions to enhance electronic Government services and processes Section 3605 of title 44, United States Code, is amended— (A) in subsection (a), by striking The Administrator and inserting The Federal Chief Information Officer ; (B) in subsection (b), by striking , the Administrator, and inserting , the Federal Chief Information Officer, ; and (C) in subsection (c)— (i) in paragraph (1)— (I) by striking The Administrator and inserting The Federal Chief Information Officer ; and (II) by striking proposals submitted to the Administrator and inserting proposals submitted to the Federal Chief Information Officer ; (ii) in paragraph (2), by striking the Administrator and inserting the Federal Chief Information Officer ; and (iii) in paragraph (4), by striking the Administrator and inserting the Federal Chief Information Officer . (6) Technical and conforming amendments (A) Table of sections The table of sections for chapter 36 of title 44, United States Code, is amended by striking the item relating to section 3602 and inserting the following new item: 3602. Office of the Federal Chief Information Officer. . (B) Positions at level III Section 5314 of title 5, United States Code, is amended by striking Administrator of the Office of Electronic Government and inserting Federal Chief Information Officer . (C) Office of Electronic Government Section 507 of title 31, United States Code, is amended by striking The Office of Electronic Government and inserting The Office of the Federal Chief Information Officer . (D) Electronic Government and information technologies Section 305 of title 40, United States Code, is amended by striking Administrator of the Office of Electronic Government and inserting Federal Chief Information Officer . (E) Capital planning and investment control Section 11302(c)(4) of title 40, United States Code, is amended by striking Administrator of the Office of Electronic Government , each place it appears, and inserting Federal Chief Information Officer . (F) Resources, planning, and portfolio management The second subsection (c) of section 11319 of title 40, United States Code, is amended by striking Administrator of the Office of Electronic Government , each place it appears, and inserting Federal Chief Information Officer . (7) Rule of construction The amendments made by this subsection were to change the name of the Office of Electronic Government and the Administrator of such office and shall not be construed to effect any of the substantive provisions of the provisions amended or to require a new appointment by the President. 7. Data inventory and planning (a) Enterprise data inventory (1) Amendment Subchapter I of chapter 35 of title 44, United States Code, as amended by section 5, is further amended by adding at the end the following new section: 3523. Enterprise data inventory (a) Agency data inventory required In order to develop a clear and comprehensive understanding of the data assets in the possession of an agency, the head of each agency, in consultation with the Director of the Office of Management and Budget, shall develop and maintain an enterprise data inventory (in this section, referred to as the Enterprise Data Inventory ) that accounts for any data asset created, collected, under the control or direction of, or maintained by the agency after the effective date of this section, with the ultimate goal of including all data assets, to the extent practicable. The Enterprise Data Inventory shall include each of the following: (1) Data assets used in agency information systems, including program administration, statistical, and financial activity. (2) Data assets shared or maintained across agency programs and bureaus. (3) Data assets that are shared among agencies or created by more than 1 agency. (4) A clear indication of all data assets that can be made publicly available under section 552 of title 5. (5) A description of whether the agency has determined that an individual data asset may be made publicly available and whether such data asset is currently available to the public. (6) Nonpublic data assets. (7) Government data assets generated by applications, devices, networks, and equipment, categorized by source type. (b) Public availability The Chief Information Officer of each agency shall use the guidance provided by the Director issued pursuant to section 3504(a)(1)(C)(ii) to make public data assets included in the Enterprise Data Inventory publicly available in an open format and under an open license. (c) Non-Public Data Non-public data included in the Enterprise Data Inventory may be maintained in a non-public section of the inventory. (d) Availability of Enterprise Data Inventory The Chief Information Officer of each agency— (1) shall make the Enterprise Data Inventory available to the public on Data.gov; (2) shall ensure that access to the Enterprise Data Inventory and the data contained therein shall be consistent with applicable law and regulation; and (3) may implement paragraph (1) in a manner that maintains a non-public portion of the Enterprise Data Inventory. (e) Regular updates required The Chief Information Officer of each agency shall update the Enterprise Data Inventory for such agency not less than annually. (f) Use of existing resources The Chief Information Officer of each agency shall use existing procedures and systems to compile and publish the Enterprise Data Inventory for such agency when practicable. . (2) Technical and conforming amendment The table of sections for subchapter I of chapter 35 of title 44, United States Code, as amended by section 5, is further amended by adding at the end the following new item: Sec. 3523. Enterprise data inventory. . (b) Standards for enterprise data inventory Section 3504(a)(1) of title 44, United States Code, is amended— (1) in subparagraph (A), by striking ; and and inserting a semicolon; (2) in subparagraph (B)— (A) by moving clause (vi) two ems to the left; and (B) in clause (vi), by striking the period at the end and inserting ; and ; and (3) by inserting at the end the following new subparagraph: (C) issue standards for the Enterprise Data Inventory described in section 3523, including— (i) a requirement that the Enterprise Data Inventory include a compilation of metadata about agency data assets; and (ii) criteria that the head of each agency shall use in determining whether to make a particular data asset publicly available in a manner that takes into account— (I) the expectation of confidentiality associated with an individual data asset; (II) security considerations, including the risk that information in an individual data asset in isolation does not pose a security risk but when combined with other available information may pose such a risk; (III) cost and value to the public of converting the data into a manner that could be understood and used by the public; (IV) the expectation that all data assets that would otherwise be made available under section 552 of title 5 (commonly referred to as the Freedom of Information Act) be disclosed; and (V) any other considerations that the Director determines to be relevant. . (c) Federal agency responsibilities Section 3506 of title 44, United States Code, is amended— (1) in subsection (b)— (A) in paragraph (1)(C), by striking security; and inserting the following: security by— (i) using open format for any new Government data asset created or obtained on the date that is 180 days after the date of the enactment of this clause; and (ii) encouraging the adoption of open format for all open Government data created or obtained before the date of the enactment of this clause; . (B) in paragraph (4), by striking subchapter; and and inserting subchapter and a review of each agency’s Enterprise Data Inventory described in section 3523; ; (C) in paragraph (5), by striking the period at the end and inserting ; and ; and (D) by inserting at the end the following new paragraph: (6) in consultation with the Director, develop an open data plan as a part of the requirement for a strategic information resources management plan described in paragraph (2) that, at a minimum— (A) requires the agency to develop processes and procedures that— (i) require each new data collection mechanism to use an open format; and (ii) allow the agency to collaborate with non-Government entities, researchers, businesses, and private citizens for the purpose of understanding how data users value and use open Government data; (B) identifies and implements methods for collecting and analyzing digital information on data asset usage by users within and outside of the agency, including designating a point of contact within the agency to assist the public and to respond to quality issues, usability, recommendations for improvements, and complaints about adherence to open data requirements in accordance with subsection (d)(2); (C) develops and implements a process to evaluate and improve the timeliness, completeness, accuracy, usefulness, and availability of open Government data; (D) requires the agency to update the plan at an interval determined by the Director; (E) includes requirements for meeting the goals of the agency open data plan including technology, training for employees, and implementing procurement standards, in accordance with existing law, that allow for the acquisition of innovative solutions from the public and private sector; and (F) prohibits the dissemination and accidental disclosure of nonpublic data assets. ; (2) in subsection (c), by striking With respect to and inserting Except as provided under subsection (j), with respect to ; (3) in subsection (d)— (A) in the matter preceding paragraph (1), by striking shall ; (B) in paragraph (1)— (i) in the matter preceding subparagraph (A), by inserting shall before ensure ; (ii) in subparagraph (A), by striking sources and inserting sources and uses ; and (iii) in subparagraph (C), by inserting , including providing access to open Government data online after economical manner ; (C) in paragraph (2), by inserting shall before regularly ; (D) in paragraph (3)— (i) by inserting shall before provide ; and (ii) by striking ; and and inserting a semicolon; (E) in paragraph (4)— (i) in the matter preceding subparagraph (A), by inserting may before not ; and (ii) by striking the period at the end and inserting a semicolon; and (F) by inserting at the end the following new paragraphs: (5) shall take the necessary precautions to ensure that the agency maintains the production and publication of data assets which are directly related to activities that protect the safety of human life or property as identified by the open data plan of the agency required by subsection (b)(6); and (6) may engage the public in using open Government data and encourage collaboration by— (A) publishing information on open Government data usage in regular, timely intervals, but not less than annually; (B) receiving public input regarding priorities for the analysis and disclosure of data assets to be published; (C) assisting civil society groups and members of the public working to expand the use of open Government data; and (D) hosting challenges, competitions, events, or other initiatives designed to create additional value from open Government data. ; and (4) by adding at the end the following new subsection: (j) Collection of information exception Notwithstanding subsection (c), an agency is not required to meet the requirements of paragraphs (2) and (3) of such subsection if— (1) the waiver of such requirements is approved by the head of the agency; (2) the collection of information is— (A) online and electronic; (B) voluntary and there is no perceived or actual tangible benefit to the provider of the information; (C) of an extremely low burden that is typically completed in five minutes or less; and (D) focused on gathering input about the performance of, or public satisfaction with, an agency providing service; and (3) the agency publishes representative summaries of the collection of information under subsection (c). . (d) Repository The Director of the Office of Management and Budget shall collaborate with the Office of Government Information Services and the Administrator of General Services to develop and maintain an online repository of tools, best practices, and schema standards to facilitate the adoption of open data practices. The repository shall— (1) include definitions, regulation and policy, checklists, and case studies related to open data, this Act, and the amendments made by this Act; and (2) facilitate collaboration and the adoption of best practices across the Federal Government relating to the adoption of open data practices. (e) Systematic agency review of operations Section 305 of title 5, United States Code, is amended— (1) in subsection (b), by inserting at the end the following new sentence: To the greatest extent practicable, each agency shall use existing data to support such reviews if the data is accurate and complete. ; (2) in subsection (c)— (A) by redesignating paragraphs (2) and (3) as paragraphs (3) and (4), respectively; and (B) by inserting after paragraph (1) the following new paragraph: (2) determining the status of achieving the mission, goals, and objectives of the agency as described in the strategic plan of the agency published pursuant to section 306; ; and (3) by adding at the end the following new subsection: (d) Open data compliance report Not later than 1 year after the date of the enactment of this subsection, and every two years thereafter, the Director of the Office of Management and Budget shall electronically publish a report on agency performance and compliance with the Open, Public, Electronic, and Necessary Government Data Act and the amendments made by that Act. . (f) GAO report Not later than 2 years after the date of the enactment of this Act, the Comptroller General of the United States shall submit to the Committee on Oversight and Government Reform of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate a report that identifies— (1) the value of information made available to the public as a result of this Act, and the amendments made by this Act; and (2) whether it is valuable to expand the publicly available information to any other data assets. 8. Technology portal (a) Amendment Subchapter I of chapter 35 of title 44, United States Code, is amended by inserting after section 3511 the following new section: 3511A. Technology portal (a) Data.gov required The Administrator of General Services shall maintain a single public interface online as a point of entry dedicated to sharing open Government data with the public. (b) Coordination with agencies The Director of the Office of Management and Budget shall determine, after consultation with the head of each agency and the Administrator of General Services, the method to access any open Government data published through the interface described in subsection (a). . (b) Technical and conforming amendment The table of sections for subchapter I of chapter 35 of title 44, United States Code, is amended by inserting after the item relating to section 3511 the following new item: Sec. 3511A. Technology portal. . (c) Deadline Not later than 180 days after the date of the enactment of this Act, the Administrator of General Services shall meet the requirements of section 3511A(a) of title 44, United States Code, as added by subsection (a). 9. Enhanced responsibilities for chief information officers and chief information officers council duties (a) Agency chief information officer general responsibilities (1) General responsibilities Section 11315(b) of title 40, United States Code, is amended— (A) in paragraph (2), by striking ; and and inserting a semicolon; (B) in paragraph (3), by striking the period at the end and inserting a semicolon; and (C) by inserting at the end the following new paragraphs: (4) data asset management, format standardization, sharing of data assets, and publication of data assets; (5) the compilation and publication of the Enterprise Data Inventory for the agency required under section 3523 of title 44; (6) ensuring that agency data conforms with open data best practices; (7) ensuring compliance with the requirements of subsections (b), (c), (d), and (f) of section 3506 of title 44; (8) engaging agency employees, the public, and contractors in using open Government data and encourage collaborative approaches to improving data use; (9) supporting the agency Performance Improvement Officer in generating data to support the function of the Performance Improvement Officer described in section 1124(a)(2) of title 31; (10) reviewing the information technology infrastructure of the agency and the impact of such infrastructure on making data assets accessible to reduce barriers that inhibit data asset accessibility; (11) ensuring that the agency is maximizing its own use of data, including data generated by applications, devices, networks, and equipment owned by the Government and such use is not otherwise prohibited, to reduce costs, improve operations, and strengthen security and privacy protections; and (12) identifying points of contact for roles and responsibilities related to open data use and implementation as required by the Director of the Office of Management and Budget. . (2) Additional definitions Section 11315 of title 40, United States Code, is amended by adding at the end the following new subsection: (d) Additional definitions In this section, the terms data , data asset , Enterprise Data Inventory , and open Government data have the meanings given those terms in section 3502 of title 44. . (b) Amendment Section 3603(f) of title 44, United States Code, is amended by adding at the end the following new paragraph: (8) Work with the Office of Government Information Services and the Director of the Office of Science and Technology Policy to promote data interoperability and comparability of data assets across the Government. . 10. Evaluation of agency analytical capabilities (a) OMB guidance for agency review Not later than 1 year after the date of the enactment of this Act, the Director of the Office of Management and Budget shall review each agency to assess the extent of the agency’s use of data assets to support decisionmaking, cost savings, and performance within the agency. (b) Agency review; report Not later than 2 years after the date of the enactment of this Act, each agency Chief Operating Officer shall submit to Congress and the Director of the Office of Management and Budget a report on the review described in subsection (a). (c) Requirements of agency report The report described in subsection (b) shall assess the coverage, quality, methods, effectiveness, and independence of the agency’s evaluation research and analysis efforts, including each of the following: (1) A list of the activities and operations of the agency that are being evaluated and analyzed and the activities and operations that have been evaluated and analyzed during the previous 5 years. (2) The extent to which the evaluations research and analysis efforts and related activities of the agency support the needs of various divisions within the agency. (3) The extent to which the evaluation research and analysis efforts and related activities of the agency address an appropriate balance between needs related to organizational learning, ongoing program management, performance management, strategic management, interagency and private sector coordination, international and external oversight, and accountability. (4) The extent to which the agency uses methods and combinations of methods that are appropriate to agency divisions and the corresponding research questions being addressed, including an appropriate combination of formative and summative evaluation research and analysis approaches. (5) The extent to which evaluation and research capacity is present within the agency to include personnel, agency process for planning and implementing evaluation activities, disseminating best practices and findings, and incorporating employee views and feedback. (6) The extent to which the agency has the capacity to assist front-line staff and program offices to develop the capacity to use evaluation research and analysis approaches and data in the day-to-day operations. (d) GAO review of agency reports Not later than 3 years after the date of the enactment of this Act, the Comptroller General of the United States shall submit to Congress a report that summarizes agency findings and highlights trends from the reports submitted pursuant to subsection (b) and recommends actions to further improve agency capacity to use evaluation techniques and data to support evaluation efforts. 11. Effective date This Act, and the amendments made by this Act, shall take effect on the date that is 180 days after the date of the enactment of this Act.