II 114th CONGRESS 2d Session S. 3484 IN THE SENATE OF THE UNITED STATES November 29, 2016 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 2016 . 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 Publishing Office. 3. Definitions In this Act: (1) Agency The term agency means an Executive agency or an independent regulatory agency. (2) Executive agency The term Executive agency means— (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; or (D) any other establishment in the executive branch of the Government (including the Executive Office of the President), other than an independent regulatory agency. (3) Independent regulatory agency The term independent regulatory agency has the meaning given the term independent establishment in section 104 of title 5, United States Code. (4) Record The term record has the meaning given the term records in section 3301 of title 44, United States Code. (5) 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. (6) 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 are— (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; and (4) to encourage the Government Publishing 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 Public Online Information Advisory Committee. 5. Findings Congress finds the following: (1) The Federal Government holds a vast repository of public information. Throughout the Nation’s history, 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 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 Americans. The Internet is ubiquitous, turning every computer into a portal to the world’s largest library. 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 public’s needs, 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 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 American people. 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 hereby established an advisory committee to be known as the Public Online Information Advisory Committee (in this Act referred to as the Advisory Committee ). (b) Purposes The purposes of the Advisory Committee are— (1) to coordinate and encourage the Government’s efforts 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 those guidelines as appropriate. (c) Membership (1) In general The Advisory Committee shall be composed of 19 members (including the Chair), as follows: (A) Six members shall be appointed by the E-Government Administrator. (B) Six members shall be appointed by the Director of the Administrative Office of the Courts. (C) Three 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. (D) Three 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. (E) 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. (2) Vice chair A Vice Chair shall be selected from among the members of the Advisory Committee by the Chair. (3) Limitation on Government employee members Not more than 6 members of the Advisory Committee may be Government employees. (4) Terms of office Each member of the Advisory Committee shall be appointed for a renewable term of 5 years, except that one-third of the members initially appointed shall be appointed for a 3-year term, one-third of such members shall be appointed for a 4-year term, and one-third of such members and the Chair shall be appointed for a 5-year term. (5) Initial appointments The initial appointments of members of the Advisory Committee shall be made not later than 90 days after the date of enactment of this Act. (6) Meetings The Advisory Committee shall meet not fewer than 6 times per year. (d) Powers of Advisory Committee (1) In general From time to time, the Advisory Committee shall examine its legislative charter, structure, and funding, and shall make recommendations to Congress, the President, and the Courts regarding how the Advisory Committee could be restructured to better accomplish the mission of making Government information available to the public on the Internet. The recommendations shall be published in print and on the Internet. (2) Specific powers To carry out the purposes of the Advisory Committee, the Advisory Committee may— (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 those guidelines as appropriate, and inquire into Government compliance with those 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. (3) 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 such Act (in accordance with section 4(a) of such Act): (A) Subcommittees shall have the same duties and obligations as the full committee as delineated under sections 10 through 13 of such Act. 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. (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’s website, with agendas available on the Internet not less than 3 days prior to any meeting. (E) All records available for public copying under section 10 of such Act shall 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 (commonly known as the Freedom of Information Act ). (I) The Advisory Committee shall make publicly available the names and brief biographies of the members of the Advisory Committee. (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 must be updated whenever new conflicts arise or on an annual basis, whichever is more frequent. These disclosures shall be placed 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. Nothing in this section shall prevent the Advisory Committee from communicating with Congress directly regarding funding or other matters. (3) 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.). (4) 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 the activities of the Advisory Committee every 2 years, or as appropriate, whichever is more frequent. (g) Authorization 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 enactment of this Act. (2) Permanence Public records shall be permanently available on the Internet. (3) Current technology 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. (4) Searchable list Each agency shall publish on the Internet a comprehensive, searchable, machine processable list of all records it makes publicly available. With respect to those records, the list shall include at least the following information: (A) Where the records can be found. (B) Whether the records are available to the public at no cost or for a fee (and the amount of the fee, if applicable). (C) 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) 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. (B) 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. In promulgating the regulations, the E-Government Administrator shall consider the guidelines issued by the Public Online Information Advisory Committee. (C) 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) 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. In addition, each Executive agency head shall designate a person within the agency responsible for Internet publication of public records. (E) 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 Administrator’s functions under this Act. (3) Independent Regulatory Agencies (A) A Chief Information Officer of an independent regulatory agency (hereafter in this section referred to as 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. In promulgating the regulations, the CIO or other official shall consider the guidelines issued by the Public Online Information Advisory Committee, as well as regulations promulgated by the E-Government Administrator under paragraph (1). (B) 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) 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 (commonly known as the Freedom of Information Act ). (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 a clear and convincing reason for the record to not be made available on the Internet; and (ii) on balance, the harm caused by disclosure significantly outweighs the public’s interest in having the record available on the Internet. (D) Availability of segregable portions 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 subparagraph (C), any reasonably segregable portion of the public record shall be made available on the Internet in a timely fashion after deletion of the portions that are subject to the exception. The amount of information deleted 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. If technically feasible, the amount of the information deleted shall be indicated at the place in the record where such deletion is made. (E) Disclosure of withheld records The E-Government Administrator, CIO, or official designated by the head of an independent regulatory agency shall maintain a list of records not made available on the Internet by reason of an exception under subparagraph (C) and publish such 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 in the Federal Register and 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 enactment of this Act. (7) Effective date Regulations promulgated under this subsection shall take effect no sooner than 3 years after the date of enactment of this Act. (c) Reports to Congress At least once every 4 years, the E-Government Administrator and each independent regulatory agency CIO shall review the exceptions provided under subsection (b)(4) to making public records available on the Internet and, if warranted, make recommendations to the President and to Congress regarding whether Federal law should be changed. The report shall be made publicly available, including being published on the Internet. (d) Inspector general reviews The Inspector General of each agency shall conduct periodic reviews regarding agency compliance with Internet publication requirements, not less often than once every 4 years. The reviews shall be published on the Internet. (e) Enforcement of Public Access by Private Individuals or Organizations (1) Requests Private individuals or organizations may request that an Executive agency place public records on the Internet, including the comprehensive searchable list of publicly available records referred to in subsection (a)(4), in accordance with Federal regulations. An agency has 30 days to respond to the request in writing or to place the record on the Internet. 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) On complaint, 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 enjoin the agency from refusing to publish agency records on the Internet, or refusing to publish it in an appropriate format, and to order the Internet online publication of any agency records improperly withheld. In such a case 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. (B) 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 The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this subsection in which the complainant has substantially prevailed. (4) Special Counsel Whenever the court 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, and the court additionally issues a written finding that the circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding, 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. A Special Counsel, after investigation and consideration of the evidence submitted, shall submit his findings and recommendations to the administrative authority of the agency concerned and shall send copies of the findings and recommendations to the officer or employee or his representative. The administrative authority shall take the corrective action that the Special Counsel recommends. (5) Contempt In the event of noncompliance with the order of the court, 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 Public Online Information Advisory Committee and the regulations promulgated by the E-Government Administrator. 9. Government Publishing Office It is the sense of Congress that the Government Publishing 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 Publishing Office is strongly encouraged to consider the recommendations of the Public Online Information Advisory Committee and the E-Government Administrator.