Senator Jon Tester introduced the Public Online Information Act (POIA) last week in the U.S. Senate, joining Representative Steve Israel who introduced virtually identical legislation in the U.S. House of Representatives in March. This is good legislation that would significantly improve government transparency. I'm going to unpack what it does, how it works, and clear up some misconceptions along the way.
The idea at the heart of POIA is very simple: public information should be available online. To say it a different way, information held by the government, required by law or custom to be available to the public, should be published on the Internet. It should be done so in a timely fashion, in user friendly-formats, and at no cost. Doing so would empower citizens to hold their government accountable, help government agencies collaborate, and contribute to economic growth.
Because the federal government has such a vast repository of public information, and that information is spread out among the 3 branches, POIA takes a very pragmatic approach to moving this information online.
It brings the 3 branches of government together to figure out how to best meet the public's demand for information. It does so in an advisory committee whose mission is to promote best practices, government coordination, and the use of modern technology. This alone is newsworthy, as nothing like it currently exists. The legislation goes even further.
POIA requires executive branch agencies to publish public information on the Internet subject to limited, commonsense exceptions. It pushes the government to adopt the presumption of openness and transparency. It requires the White House's Office of Management and Budget, and CIOs at independent agencies, to craft implementing regulations. POIA also grants the public a limited private right of action, similar to that available under FOIA, to make sure the government lives up to its transparency obligations.
Because the government's repository of information is so vast, POIA mandatory online publication requirement is limited in four major ways.
First, POIA applies only to the Executive Branch. The vast majority of public information is held by the executive branch, which is the most sophisticated branch of government in terms of putting information online. It is a good place to start. Successful lessons should be applied to the other two branches.
Second, POIA applies prospectively -- only public records generated, updated, or released after its enactment must be published online. Trying to address over 230 years of backlogged records all at once would drown this effort before it truly gets started. The National Archives has been working on this issue for years; that is a problem best addressed separately. Because most government records are now created in electronic formats, it should be comparatively easy to make them available online when compared to 100-year-old documents.
Third, POIA has a sunrise provision -- Internet disclosure of public records becomes mandatory 3 years after enactment. This gives agencies time to prepare how they will make information available online, and build the necessary support systems.
Fourth, POIA has content-based exemptions. POIA allows agencies to incorporate the Freedom of Information Act's exemptions, which apply to how agencies make information available to the public, into their rules governing how they make public information available online. Those exceptions include classified information, internal personnel rules, privileged or confidential trade secrets and commercial or financial information, information used for certain law enforcement purposes, and others.
In addition, there is an additional narrow exception to online publication that can only be granted on a case-by-case basis by the relevant administrator. The need for this exception arises from the fact that no one can definitely say whether the FOIA exemptions, which apply to how information is made available to the public, perfectly cover all instances of harm that would arise were certain information to be made available online. As a result, agencies can invoke this additional exception when there is “clear and convincing evidence” it is necessary, but they must show “the harm caused by disclosure significantly outweighs the public interest” in online publication.
Combined with the newly created right for a dissatisfied requester to sue for the information to be made available online, agency officials who are deciding whether to grant an additional exception to online publication will know that both the agency's lawyers and federal courts will be looking over their shoulders. They will have a strong incentive to keep these exceptions narrow and rare. Because these documents are already available to the public, there will be no secrets as to what the government chooses not to make available online.
In the rare instances where the government withholds information, it must indicate that it has done so. In addition, agency Inspector Generals must periodically review agency compliance with POIA, providing another nudge towards openness.
Representative Israel and Senator Tester have performed the heavy lifting in drafting and introducing the Public Online Information Act. No other transparency legislation so dramatically shifts the presumption from government secrecy to government openness with respect to making public documents available to the American people. Not since FOIA have the American people been given a broad right to make sure that their government's transparency policies work for them. POIA is a tremendous step forward. I hope that POIA gets the full hearing that it deserves. More information is available at thePOIA.org.