03.17.09

Leahy, Cornyn Celebrate Sunshine Week With FOIA Legislation

WASHINGTON (Tuesday, March 17, 2009) – Senators Patrick Leahy (D-Vt.) and John Cornyn (R-Texas) on Tuesday partnered again to introduced legislation to strengthen the Freedom of Information Act, the nation’s foremost federal law that protects the public’s right to know what their government is doing.  This week marks the fifth annual Sunshine Week, a national observance of the importance of open government and the freedom of information.  

The OPEN FOIA Act introduced by Leahy and Cornyn would require Congress to openly and clearly state its intention to provide for statutory exemptions to FOIA in proposed legislation.  The Senate first passed similar legislation unanimously in 2006, and Leahy and Cornyn introduced the bill in the last Congress.

Leahy said, “This bipartisan bill builds upon the work that Senator Cornyn and I began several years ago to reinvigorate and strengthen FOIA.  Too often, legislative exemptions to FOIA are buried within a few lines of very complex and lengthy bills, and these new exemptions are never debated openly 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.  Sunshine Week reminds all of us that open government is not a Democratic issue, nor a Republican issue.  It is an American issue.  Democratic and Republican Senators alike have rightly supported and voted for this bill in the past.  It is in this same bipartisan spirit that I urge all Members to support this bipartisan FOIA reform bill.”

Cornyn said, “The OPEN FOIA Act would strengthen the nation’s foremost open government law by adding new transparency and accountability measures to FOIA. Last Congress, Chairman Leahy and I were successful in passing the most sweeping reforms to FOIA in recent history under the OPEN Government Act.  This legislation builds on that success and would shed additional light on the way our federal government conducts its business.  The bipartisan OPEN FOIA Act will ensure that Congress can't slip anti-transparency measures into legislation without someone noticing. I hope this bill will garner support from my colleagues and President Obama to further our shared goal of creating a more open government that serves the needs of the American people.”

Leahy and Cornyn are longtime leaders on FOIA issues in Congress, and in 2007, they partnered to author the OPEN Government Act.  Signed into law later that year, the measure made the first major reforms to FOIA in more than a decade by restoring meaningful deadlines for agency action under FOIA, and imposing real consequences on federal agencies for missing FOIA’s 20-day statutory deadline.  The OPEN Government Act also provided for the establishment of the Office of Government Information Services (OGIS) in the National Archives and Records Administration (NARA).  The office is charged with reviewing agency compliance with FOIA, mediating inter-agency FOIA disputes, and housing the newly created FOIA ombudsman.   Earlier this month, the President signed the omnibus appropriations bill, which included $1 million to establish OGIS.

Sunshine Week participants include print, broadcast and online news media, civic groups, libraries, non-profit organizations, schools and others.

Leahy and Cornyn have authored and supported several additional open government and transparency measures in the Senate.  Leahy was installed in the Freedom of Information Act Hall of Fame in 1996, and on Monday was awarded the Robert Vaughn FOIA Legend Award.  Cornyn has long been a champion of open government. As Texas Attorney General, he took ground-breaking measures to increase transparency, and he received the Sunshine in Government award from the National Newspaper Association in 2007.

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Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On Introduction of the OPEN FOIA Act
March 17, 2009

MR. PRESIDENT.  This week, our Nation celebrates Sunshine Week – a time to      recognize and promote openness in our government.   At this important time of year, I am pleased to join with Senator Cornyn to reintroduce the OPEN FOIA Act – a bipartisan bill to promote more openness regarding statutory exemptions to the Freedom of Information Act (“FOIA”). 

This bipartisan bill builds upon the work that Senator Cornyn and I began several years ago to reinvigorate and strengthen FOIA.  Together, we introduced, and Congress ultimately enacted, the OPEN Government Act – the first major reforms to FOIA in more than a decade.  I thank Senator Cornyn for his work and leadership on this important issue.  I also thank President Obama -- who was a cosponsor of the OPEN Government Act when he was in the Senate -- for his deep commitment to FOIA.  President Obama clearly demonstrated his commitment to open government when he issued a new directive to strengthen FOIA during his first full day in office. 

The OPEN FOIA Act simply requires that when Congress provides for a statutory exemption to FOIA in new legislation, Congress must state its intention to do so explicitly and clearly.  This commonsense bill mirrors bipartisan legislation that the Judiciary Committee favorably reported, and the Senate unanimously passed, during the 109th Congress (S.1181).  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 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.  The Freedom of Information Act 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 be withheld from the public.   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 public’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.  Too often, legislative exemptions to FOIA are buried within a few lines of very complex and lengthy bills, and these new exemptions are never debated openly 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.

The OPEN FOIA Act will help stop this practice and shine more light on the process of creating legislative exemptions to FOIA.  That will be the best antidote to the “exemption creep” that we have witnessed in recent years.

When he recently addressed a joint session of the Congress and the American people, President Obama said that “I know that we haven’t agreed on every issue thus far, and there are surely times in the future when we will part ways.  But, I also know that every American who is sitting here tonight loves this country and wants it to succeed.  That must be the starting point for every debate we have in the coming months, and where we return after those debates are done.”

Sunshine Week reminds all of us that open government is not a Democratic issue, nor a Republican issue.  It is an American issue and a virtue that all Americans can embrace. 

Democratic and Republican Senators alike have rightly supported and voted for this bill in the past.  It is in this same bipartisan spirit that I urge all Members to support this bipartisan FOIA reform bill.

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