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Senate's Public Online Information Act draws criticism

Sen. Jon Tester, D-Mont., said he had not consulted with contractors about his bill.Charles Dharapak/AP

A senator introduced a bill on Thursday that would require agencies to publish online future public records, including contracts and records belonging to federal suppliers -- a provision that has drawn criticism both from industry groups and transparency organizations.

Sen. Jon Tester, D-Mont., unveiled the 2010 Public Online Information Act, which would give agencies three years to upload information they deem public to a searchable database that would work like a card catalog. Some information would be exempt from the posting requirement, if agencies provide compelling evidence to explain why releasing the material on the Web would be harmful.

The bill, S. 3321, expands the statutory definition of a government record to include "contracts entered into by persons working as agents of the federal government, including records in the possession of government contractors."

A companion measure in the House, H.R. 4858, contains significant differences. The House bill does not require agencies to disclose contracts and stops short of requiring evidence to exclude certain information.

The federal procurement lobby and some open government advocates said the requirement to post contract material is too expansive and vague. The open government community is divided over its support of the bill, with some organizations critical of the language that excludes certain public information, such as material that agencies consider a threat to national security.

But Tester, a longtime advocate of federal transparency, said the nuances of his bill are necessary to hold the government accountable and protect public safety. "It will blaze a new path toward transparency, accountability -- and continue to clean up Washington, D.C.," he said during a call with reporters.

Tester was the first congressional member to post his daily public schedule online. His proposal would allow people to access online hard-to-find documents such as pension plan filings, reports disclosing lobbying activities by organizations that win federal grants, and information on junkets, or trips officials take that are paid for by companies and not the government.

The Professional Services Council, which represents government contractors, said it supports transparency but the language in the Senate version appears overly broad. The bill "could well lead to the public exposure of a wide range of proprietary, company sensitive, employee and/or security sensitive information," said Stan Soloway, president and chief executive officer of the council. "Moreover, the inclusion in the requirement of records held by the contractor raises numerous additional concerns regarding appropriate privacy and confidentiality needs."

When asked if he had discussed that provision with the contracting community, Tester said he had not. "If they don't like it, that's too bad," he said. "I think this is information that the public should have."

Soloway said many basic contract elements already are made available on websites such as USASpending.gov, a searchable database intended to include awards, the Federal Procurement Data System and FedBizOpps.gov, a list of government contracting opportunities.

Government accountability group OMB Watch also said the requirement might need clarification. "For example, does it mean all records of the contractor?" said Gary Bass, the group's executive director. "If only the federal records, where is that line drawn? Is budget information about the contractor a federal record? What if the contractor is 100 percent funded by federal funds? How about if only 10 percent? And does the contractor get to appeal -- with clear and convincing evidence -- for an exemption?"

The bill states the federal chief information officer or the CIO at a regulatory agency can grant "narrow, case-by-case exceptions" if an agency can show "clear and convincing evidence" the record should not be made available online and the harm that would be caused by disclosure would outweigh the public's interest in accessing the record online.

The House measure contains nearly identical language except it would require a CIO to demonstrate a clear and convincing "reason" for exemption, rather than "evidence."

An aide for Tester said the Senate's language is stronger than the House's because the Tester version conforms to a clearly understood legal standard as opposed to suggesting a level of analysis.

Bass said this kind of legislation typically would not be applied in a court of law, but rather in a CIO's office, when the official reviews a request for exclusion. Bass said in reality all public information is online information. "Once material is public, it will be made available on the Internet regardless of whether government does it," he noted. "When the government withdrew information from websites after 9/11 --- including public information -- it stayed on the Internet through nongovernmental sources."

Bass said the improved language does not address his main point that public always equals online, not some of the time.

The Sunlight Foundation, an open government group, is currently running a campaign called Public = Online to promote the concept that government information should by default be available on the Internet. The foundation supports Tester's bill.

"Sen. Tester has put down an important transparency marker: In today's world, for information to be truly public, it must be made available online," Ellen Miller, executive director and co-founder of the Sunlight Foundation, said in a statement.

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