Introduction Of The OPEN FOIA Act of 2008

Leahy, Cornyn Introduce New OPEN FOIA Bill On Eve Of Sunshine Week

WASHINGTON (Wednesday, March 12, 2008) – As Sunshine Week  nears, open-government leaders Sens. Patrick Leahy (D-Vt.) and John Cornyn (R-Texas) Wednesday introduced  their latest tandem effort to peel back the curtains on government secrecy and further strengthen the nation’s primary open government law, the Freedom of Information Act (FOIA).

Their new bill would add new transparency and accountability standards when Congress considers adding new FOIA exemptions to the law.  The OPEN FOIA Act would require Congress to explicitly and clearly state its intention to provide for statutory exemptions to FOIA in new legislative proposals.   Similar legislation unanimously passed the Senate in the last Congress.  The new OPEN FOIA Act follows the passage of the Leahy-Cornyn OPEN Government Act, which the President signed into law in December, adding the first reforms to FOIA in more than a decade, including restoring meaningful deadlines for agency action under FOIA and imposing real consequences on federal agencies for missing FOIA’s 20-day statutory deadline.

The exemptions to FOIA addressed in the OPEN FOIA Act, known as (b)(3) statutory exemptions, are typically buried in  complex and lengthy legislative proposals, making it difficult for requestors to determine whether access to information is subject to FOIA.  The OPEN FOIA Act would provide more transparency when Congress includes such exemptions in legislation.

“This Congress has signaled its support for strengthening the Freedom of Information Act,” said Leahy.  “Senator Cornyn and I have worked together for years to restore openness and transparency to a government that has become increasingly secretive.  While some government information needs to be kept secret, we cannot allow the government to hide behind the veil of secrecy and curb the public's right to know, just to avoid accountability.  Our new legislation will take steps to make clear those exemptions to FOIA, and this is a fitting start to Sunshine Week.”

“It was encouraging to see Congress take major steps recently to expand the American people’s right to government information,” Cornyn said.  “This latest bill is an effort to further enhance government transparency and accountability.  Sunshine Week is an opportunity to highlight these important principles of our founding fathers—a truly self-governing society depends on an informed citizenry.  Chairman Leahy and I will continue working together to ensure the public’s fundamental right to know what their government is doing.”


Sunshine Week is a national program highlighting the importance of open government and freedom of information.  News organizations, schools, nonprofit groups and others have celebrated Sunshine Week since 2005, and  this year the commemoration is set for March 17-21.  Leahy and Cornyn are longtime advocates for open government.


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Statement Of Senator Patrick Leahy

On Introduction Of The OPEN FOIA Act of 2008

March 11, 2008


MR. PRESIDENT.  Today, as we approach the national celebration of Sunshine Week 2008, I am pleased to join with Senator Cornyn to introduce the OPEN FOIA Act of 2008, a concise and straightforward bill to further strengthen the Freedom of Information Act (FOIA).  This bill is the next step in the important work that Senator Cornyn and I have undertaken to reinvigorate and strengthen FOIA, and it follows the enactment late last year of the Leahy-Cornyn OPEN Government Act, a law which made the first major reforms to FOIA in more than a decade.


The OPEN FOIA Act simply requires that when Congress provides for a statutory exemption to FOIA in new legislation, Congress in that bill must state its intention to do so explicitly and clearly.  This commonsense bill mirrors bipartisan legislation that unanimously passed the Senate in the last Congress (S.1181).  I hope that the Senate will once again promptly and unanimously pass this good-government bill.


While no one can fairly question the need to keep certain government information secret to ensure the public good, excessive government secrecy is a constant temptation, and excessive secrecy is the enemy of a vibrant democracy.  For more than four decades, FOIA has served as perhaps the most important Federal law to ensure the public’s right to know and to balance the government’s power with the need for government accountability.


FOIA contains a number of exemptions to its disclosure requirements for national security, law enforcement, confidential business information, personal privacy and other circumstances.  The FOIA exemption commonly known as the “(b)(3) exemption,” requires that government records that are specifically exempted from FOIA by statute may be withheld from the public.  Of course, neither I nor Senator Cornyn would quibble with the notion that some government information is appropriately kept from public view.  But in recent years we have witnessed an alarming number of  FOIA (b)(3) exemptions being offered in legislation – often in very ambiguous terms – to the detriment of the American people’s right to know.


The bedrock principles of open government lead me to believe that (b)(3) statutory exemptions should be clear and unambiguous, and vigorously debated, before they are enacted into law.  Of course, sometimes this does happen.  But more and more often, legislative exemptions to FOIA are buried within a few lines of very complex and lengthy bills, which are never debated openly and publicly before becoming law.  The consequence of this troubling practice is the erosion of the public’s right to know and the shirking of Congress’ duty to fully consider these exemptions.


Senator Cornyn and I both believe that Congress must be diligent in reviewing any new exemptions to FOIA, to prevent possible abuses and a situation where the exceptions to disclosure under FOIA swallow this important disclosure rule.  The OPEN FOIA Act will ensure openness and clarity about how we treat our most important open government law.  And our bill will also shine more light into the process of creating legislative exemptions to FOIA – which is the best antidote to exemption creep.


Democratic and Republican Senators alike have rightly supported and voted for this bill in the past.  As I have said many times before, open government is not a Democratic issue, nor a Republican issue.  It is an American value and a virtue that all Americans can embrace.  I urge all Members to support this bipartisan good-government step to strengthen the public’s right to know.


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