The Public Online Information Act (POIA)

"A democracy requires accountability, and accountability requires transparency. As Justice Louis Brandeis wrote, 'sunlight is said to be the best of disinfectants.'" ~President Obama, Freedom of Information Act memorandum.

Introduced today by Senator Jon Tester the Public Online Information Act is a piece of legislation driven by the Sunlight Foundation whose detailed agenda advocates for, "Public oversight, civic participation and electoral engagement--the stuff of democratic accountability--all depend on a transparent, open government."  In March, Representative Steve Israel introduced companion legislation (H.R. 4858) into the House of Representatives.
While the Freedom of Information Act (FOIA) requires individuals to make a detailed request of the records they want an agency to disclose, the POIA compels an agency to proactively push information outward without waiting to be asked by a requester.  This piece of legislation dovetails nicely on the heels of President Obama's Transparency and Open Government memorandum and his Freedom of Information Act memorandum, both of which compel agencies to err on the side of disclosure.  In discussions with a colleague who specializes in FOIA he said, "it's like a hybrid of FOIA and Open Government, removing the fees and paper based process replacing it with current technological solutions."

The biggest thrust of the legislation is establishing a 19-member permanent advisory committee to issue nonbinding government wide guidelines on making public information available on the internet.  However, in Section 7 (beginning on page 13, Line 16 of HR4858) a requirement is levied on all Executive Branch Agencies to open up their archives at no charge to the public.  The records will be permanently available, delivered with current technology, and each agency shall provide a comprehensive, searchable, machine processable list of all records it makes publicly available.

The enforcement of public access by private individuals or organizations (Section 7(e), page 21 line 11 of HR4858) is very strong and to the point for agencies -- disclose or prepare to justify, in court, why you did not.  The enforcement section puts the power into the hands of the people, so to speak.  If a request is made to release a document and it is denied the private individual or organization may file a complaint in Federal court.  The legislation states that the court will not take the Agency's word but will conduct a private review (in camera) of the documents de novo (a fresh, a new -- with fresh eyes, not those of the agency reviewers).  If the case is ruled in favor of the complainant the court may assess against the United States reasonable attorney fees and other litigation costs.

If the courts rule against the agency for withholding, a Special Counsel investigation will take place to see if the agency employee acted arbitrarily or capriciously and levy appropriate punishment. Employees may even be found in contempt for their actions.

Quick Thoughts:

  1. Very strong enforcement mechanisms
  2. Nonbinding guidelines are just that, nonbinding. 
  3. The requirement of compiling, cataloging, and publishing a list of publicly available documents is an expensive requirement.  Agency's have retired tons of paper files and tera-peta-mega-gigs (a lot) of data into storage facilities.  How far back is an agency expect to go? 
  4. This bill will increase bandwidth and storage needs of every executive agency unless NARA and/or LoC step up to make a "POIA Service" -- I like this idea.  One centralized location for people to come and access files and data.  Funding for this would be easier to manage than giving dollars to each agency to implement a hodgepodge of solutions.
  5. Potential to clog judiciary -- with direct-to-judiciary appeals process (versus FOIA's two-tiered approach to the appellate authority -- generally the agency OGC) and tight compliance deadlines we could see a lot of judicial activity when there really does not need to be any.
  6. Potential for abuse -- Duel requests to FOIA and POIA offices to release the same information, having agencies work two identical requests from multiple funding streams...may add to government waste.
Overall I like it and will be eager to see what the bill looks like after it gets out of committee and up for a final vote.  I think I will be adding a tag for POIA to the PrivacyWonk Tag cloud.