Leahy Opens “Sunshine Week” With FOIA Speech At American University

WASHINGTON (Monday, March 16, 2009) – Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) delivered the keynote address Monday at the Second Annual Freedom of Information (FOI) Day Celebration at American University Washington College of Law in Washington, D.C.  Leahy, a longtime advocate of government transparency and of strengthening the Freedom of Information Act (FOIA), was also awarded the Robert Vaughn FOIA Legend Award at Monday’s conference.

March 16 is the first day of the fifth annual “Sunshine Week,” a national observance spotlighting the importance of open government.  Leahy announced Monday that he intends to reintroduce the OPEN FOIA Act with Senator John Cornyn (R-Texas) later this week.  The OPEN FOIA Act would require that when Congress provides for a statutory exemption to FOIA in new legislation, it must state its intention to do so explicitly and clearly in that bill.  Leahy and Cornyn have partnered on open government legislation in past years.  They are the authors of the OPEN Government Act, which made the first reforms to the Freedom of Information Act in more than a decade.  The OPEN Government Act included several key provisions to strengthen FOIA, including the creation of an ombudsman to mediate FOIA disputes.  Last week, the Senate passed an omnibus appropriations bill, which included funding to establish the FOIA ombudsman’s office at the National Archives and Records Administration.

Leahy was installed in the Freedom of Information Act Hall of Fame in 1996.  This year, he authored an op-ed entitled Fresh Victories for the Public’s Right to Know, highlighting encouraging developments in government transparency.

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Remarks Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
Second Annual Freedom of Information Day Celebration,
American University Washington College of Law
March 16, 2009

A Freedom of Information Agenda for the New Era of Responsibility

As Prepared

Thank you, Tom for that kind introduction.  It is truly an honor to accept the distinguished “Robert Vaughn FOIA Legend Award.”  

It is great to be at American University to celebrate your Second Annual Freedom of Information Day.  I want to thank the Collaboration on Government Secrecy – and particularly, Dan Metcalfe – for inviting me to be a part of this celebration.  I also want to thank the faculty, staff and students of the American University Washington College of Law for this special recognition. 

Tom Downey and I are both proud members of the Congressional Class of 1974.  When we came to Washington, the Church Committee was hard at work exposing the abuses of the Watergate era.  Like so many others who served in Congress at that time, I have been shaped by the important lessons of that difficult period in our nation’s history.  Perhaps the greatest lesson of that era was that open and transparent government is the best antidote to abuse of power and the best guardian of the people’s right to know.  

Knowledge is Power

James Madison, who celebrates a birthday today, once said that “[k]nowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives.”   The right to know is a cornerstone of our democracy.  Without it, citizens are kept in the dark about key policy decisions that directly affect their lives.  Without open government, citizens cannot make informed choices at the ballot box.  Without access to public documents and a vibrant free press, officials can make decisions in the shadows, often in collusion with special interests, escaping accountability for their actions.  And once eroded, the right to know is hard to win back. 

If knowledge is power, then the Freedom of Information Act is the power cord that connects the American people to their government.  That is why from the start of his transition to the White House, I have urged President Obama to make a clear commitment to FOIA. 

I am pleased that one of the President’s first official acts was to issue a new directive to strengthen FOIA.  The new Attorney General, Eric Holder, is committed to developing new FOIA guidelines that will restore the presumption of disclosure for government information.  I am encouraged by news that the Attorney General will be releasing his new FOIA guidance in the very near future.

In Congress, we have also made good progress towards strengthening FOIA.  Last week, the Congress enacted an omnibus spending bill that includes critical funding to finally establish the Office of Government Information Services at the National Archives and Records Administration.  This new office is a key reform in the OPEN Government Act which I wrote with Senator Cornyn that will provide an alternative to costly and timely litigation for FOIA requesters and government agencies.   

There are also other important reforms in the OPEN Government Act – to ensure better tracking of FOIA requests, to reduce FOIA processing delays and to provide for more accountability for the government’s handling of FOIA requests – that became effective for the first time in December.

Earlier this month, we also witnessed a great victory for freedom of information with the release of long-secret Justice Department documents underscoring more of the last administration’s erroneous views of constitutionally- protected rights.  Two particularly shocking memos suggest the suspension of First Amendment rights and press freedoms, and Fourth Amendment protections against searches and seizures.  As Chairman of the Senate Judiciary Committee, I have pressed for years to make this information public.  Attorney General Holder has recognized the great value to our democracy and to the rule of law in publicly releasing this information, and I am encouraged by his commitment to publicly release more of these documents in the future.  It is good for America and for all Americans that these documents have finally seen the light of day.

The President’s new FOIA memorandum, the implementation of the first major reforms to FOIA in more than a decade,  and the recent release of long-secret Justice Department legal memos  have all made our government more open and accountable to the American people today, than it was just a few months ago.  With the start of a new administration that is committed to government transparency, we are truly living in a new era of responsibility and openness.  That is a great reason to celebrate – especially on Freedom of Information Day.  But, we can – and must – do more. 

The New Era of Responsibility

Many years after Watergate and my earliest days in the Senate, we have once again come to a time of great challenge.  When he addressed the Congress a few weeks ago, President Obama said that “[t]hose of us gathered here tonight have been called to govern in extraordinary times.  It is a tremendous burden, but also a great privilege – one that has been entrusted to few generations of Americans.  For in our hands lies the ability to shape our world for good or for ill.”  

In this new era of government responsibility, a key challenge for those of us who care deeply about open government is to figure out how to strike the right balance between the legitimate need for government confidentiality and the people’s right to know.  To accomplish this task, I believe that the Congress must lead the way, as it did after Watergate, by taking on a new freedom of information agenda. 

The first item on that agenda is continued work to reinvigorate FOIA.  After more than four decades, FOIA remains an indispensable tool for shedding light on bad government policies and helping to guarantee the public’s right to know.  That is why this week, I will join with Senator John Cornyn in reintroducing a bipartisan bill to make more transparent the exemptions to FOIA that are created by new bills introduced in the Congress. 

The Leahy-Cornyn OPEN FOIA Act will require that when Congress provides for a statutory exemption to FOIA in new legislation, it must state its intention to do so explicitly and clearly in that bill.  Of course, no one would quibble with the idea that some government information should be kept secret.  But, the growing use of legislation to carve out new exemptions to FOIA poses a danger to the ideals of open government.  I believe that the OPEN FOIA Act will help shine some light on these new FOIA statutory exemptions and help to combat the “exemption creep” that we have witnessed during the past eight years.

It is also essential that the American people have a FOIA law that is not only strengthened by reform, but properly enforced.  That is why I have called on the Justice Department to conduct a comprehensive review of its pending FOIA cases, to ensure that information sought under FOIA is not being improperly withheld from the public. 

Another challenge we face is figuring out how to provide some accountability for what has been an extraordinary expansion of government secrecy during the past eight years. 
Like many Americans, I firmly believe that we need to get to the bottom of what went wrong with our policies on national security, torture and civil liberties.  That is why I have proposed the idea of a Commission of Inquirynot for purposes of constructing criminal indictments, but to assemble the facts and find out the truth.  Just as I learned during my early days in the Senate, sometimes the best way to move forward is by getting to the truth, finding out what happened, so we can make sure it does not happen again.  And, I hope the Congress will seriously consider this proposal. 

Lastly, the freedom of information agenda in this new era of responsibility must address the growing use of the state secrets privilege to withhold government information from the public.  The state secrets privilege serves important goals where properly invoked.  But, there are serious consequences for litigants and for the American public when the privilege is used to stop litigation alleging serious government misconduct. 

Recently, I introduced the State Secrets Protection Act with Senator Kennedy and Senator Specter.  This bill would help balance the government’s legitimate interests in secrecy with the equally legitimate interest of citizens to seek judicial redress.  This bill and the Justice Department’s own efforts to review its use of this privilege will go a long way towards restoring confidence in our government.

There is certainly plenty of work to do.  I and others in Congress will continue to work to make our government more open and accountable to its citizens.  But, we will also need the FOIA advocates, policy makers and scholars here today to help carry out this ambitious agenda.  As James Madison wisely said, “[a] popular government without popular information, or the means of acquiring it, is but a prologue to a farce, or a tragedy, or perhaps both.” 

As we celebrate Freedom of Information Day, we are reminded that a free, open and accountable society comes with the duty of its citizens to seek out the truth and to empower themselves with that knowledge.  That is the democracy that James Madison envisioned and fought to establish.  It is also the duty of each new generation of Americans to protect this vital heritage.  On this Freedom of Information Day – and during this historic time for our nation – we must all reaffirm this commitment “to arm ourselves with the power which knowledge gives,” so that “we the people” can help shape our nation for good.

Thank you.  I look forward to your questions.

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