03.20.12

The Leahy Letter -- Sunshine Week Special Edition

Another Illuminating "Sunshine Week"

Another successful “Sunshine Week,” an annual opportunity to take inventory of the public’s right to know what their government is doing, has come and gone.  Americans from coast to coast participated in ways large and small.  Sunshine Week usually coincides with the March 16 birthday of James Madison, one of the authors of the Constitution and the Bill of Rights and an early champion of openness in government.

Senator Leahy is always working at the crossroads of these discussions as the longtime champion in Congress of the Freedom of Information Act – the nation’s premier government transparency law -- enacted in 1966 and strengthened several times since then under reforms he has steered into law. 

In 1996, after enactment of his Electronic Freedom of Information Act, directing federal agencies to adapt to the Internet Age by making documents available to the public online, he was inducted into the Freedom of Information Act Hall of Fame.   

His OPEN Government Act was signed into law in 2007, making the first significant reforms in more than a decade to strengthen and bolster the Freedom of Information Act.

In 2008, he introduced the OPEN FOIA Act which promotes greater transparency for legislative exemptions to FOIA and requires Congress to explicitly state its intention to provide for statutory exemptions to FOIA in any proposed legislation. The OPEN FOIA Act was signed into law in 2009.

In the current Congress he has introduced the Faster FOIA Act and twice guided it to Senate passage, each time with unanimous support. The Faster FOIA Act will establish an advisory panel to examine agency backlogs in processing FOIA requests. Despite overwhelming support in the Senate, this legislation so far has been stalled in the House of Representatives.

Senator Leahy also continues to keep a watchful eye out for overly broad exemptions to FOIA in other proposed legislation in Congress. In 2011, the Senate unanimously adopted a Leahy amendment to the National Defense Authorization Act to limit an overbroad exemption to FOIA that had been included in the bill. In recent months, Senator Leahy worked with Senate leadership to incorporate transparency measures in the STOCK Act – legislation regulating the financial activities of those with information related to pending or prospective legislative action.

To learn more about Sunshine Week, please click here.

To learn more about FOIA, please click here.

Senator Leahy Holds Annual Sunshine Week Hearing On FOIA

Senator Leahy questions Miriam Nisbet, Director of the Office of Information Policy at the Department of Justice at a hearing on the Freedom of Information Act on March 13.

During this past Sunshine Week, Senator Leahy chaired a hearing in the Senate Judiciary Committee on FOIA and critical infrastructure information.

Senator Leahy was the author of an amendment to the National Defense Authorization Act to add a public interest balancing test requiring the secretary of defense to consider whether the disclosure of critical infrastructure information would reveal vulnerabilities that would result in harm to government property or facilities, and whether the public interest in the disclosure of the information outweighs the government’s need to withhold the information. At the hearing, he committed to working to ensure that the public’s interest in accessing essential health and safety information is protected when Congress considers legislative exemptions to FOIA.

Senator Leahy said, “Securing our nation’s critical infrastructure information is without question a pressing national priority. But unless we also safeguard the public’s right to know about threats to health and safety, the American people will be kept in the dark about dangers that directly affect their lives.”

To watch video of the hearing, please click here.

Sunshine in the Courtroom

For years, Senator Leahy has supported the bipartisan Sunshine in the Courtroom Act, which allows the chief judge, or in the case of the Supreme Court, the Chief Justice, to permit cameras in their courtrooms.  Senator Leahy has been a longtime advocate of policies to make all branches of government open and transparent to the people. The Sunshine in the Courtroom Act was approved by the Senate Judiciary Committee, but it has not yet been considered by the full Senate.

In February, with Senator Leahy’s support, the Senate Judiciary Committee approved additional legislation to provide for the televising of proceedings specifically before the U.S. Supreme Court. The Committee has approved legislation to permit cameras in the Supreme Court in every Congress since the 107th Congress.

To learn more about Senator Leahy’s work to allow cameras in the courtroom, please click here.

Balancing Security And Open Government In The Cyber Age

Senator Leahy authored a guest column late last week which appeared in newspapers and publications across the country.

The Freedom of Information Act (FOIA) has been a bulwark of our open society since it was signed into law by President Johnson 45 years ago. Today, amid debates in Congress about how best to improve the nation’s security in cyberspace, we must remember that while we have an obligation to protect the government’s most sensitive information, we also have an  equally compelling duty to safeguard the public’s “right to know” about threats to their health and safety.

Of course government secrecy has its place. There are real and intensifying threats to critical infrastructure and other sensitive government information. But governments will always be tempted to overuse the secrecy stamp. When that happens, secrecy can come at an unacceptable price, harming citizens’ interest in safety, health and a clean environment.

For more than four decades, FOIA has carefully balanced the federal government’s need to protect important and sensitive information with the right of every citizen to learn what their government is doing. When Congress first considered FOIA more than four decades ago, the House of Representatives noted that "it is vital to our way of life to reach a workable balance between the right of the public to know and the need of the government to keep information in confidence to the extent necessary without permitting indiscriminate secrecy."

In the decade since the tragic events of 9/11, Congress has grappled with how to maintain this balance, as new threats and new technologies emerge. Today, when cyber threats can be transmitted over the Internet in an instant, maintaining the proper balance between security and openness for critical infrastructure information is more important than ever before.

We are often reminded that FOIA remains an indispensable tool for Americans to obtain information about threats to their health and safety. Through FOIA requests, citizens living on and near Camp Lejeune Marine Base in North Carolina have been able to learn more about contaminated well water which is believed to have sickened -- and in some instances killed -- service members, members of their families and other residents for decades. Thousands of miles away in Washington State, concerned Americans are using FOIA to learn more about the potential dangers to their communities posed by munitions stored on Naval Magazine Indian Island.

In January, a carefully balanced and narrow exemption to FOIA for Defense Department critical infrastructure information was signed into law as part of the annual National Defense Authorization Act (NDAA). A key part of that measure is a requirement that government officials affirmatively determine that withholding information from the public outweighs other interests -- such as ensuring that citizens have access to health and safety information -- before keeping critical infrastructure information secret. This law will help ensure that truly sensitive government information is protected, while allowing public access to important information about potential health and safety threats.

This year during Sunshine Week, the Senate Judiciary Committee will hold a hearing to examine how best to protect critical infrastructure information throughout our government, while at the same time safeguarding the public’s right to know. As Congress considers new exemptions to FOIA in connection with comprehensive cybersecurity legislation, we must remain vigilant and ensure that the public’s access to essential health and safety information is protected.

Securing our nation’s critical infrastructure information is a pressing national priority.  So, too, is protecting the rights of Americans to know what their government is doing.  Without the right to know the facts about threats to their health and safety, the American people are kept in the dark about dangers that directly affect their lives. The last decade has taught us that striking the right balance between security and openness is no easy task. This Sunshine Week provides a timely reminder of just how much is at stake for all Americans.

[Sen. Leahy was inducted into the Freedom of Information Act Hall of Fame in 1996. He is the author of the Electronic FOIA Amendments of 1996 and coauthor of the OPEN Government Act of 2008 and the Faster FOIA Act of 2011. He recently authored FOIA provisions in the National Defense Authorization Act.]

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