Cornyn, Leahy Call For Greater Transparency
In Congressional FOIA Exemption Attempts

‘Congress should not establish new secrecy provisions through secret means’

WASHINGTON— U.S. Sens. John Cornyn (R-Texas) and Patrick Leahy (D-Vt.) introduced bipartisan legislation Tuesday to ensure greater openness in the legislative process. The bill creates additional legislative transparency by requiring that any future legislation containing exemptions to the Freedom of Information Act (FOIA) requirements be “stated explicitly within the text of the bill.” It marks one in a series of open government bills on FOIA reforms that Leahy, the ranking Democratic member of the Senate Judiciary Committee and Cornyn, a member of the panel, have sponsored together.

“This bipartisan legislation will help to ensure an open and deliberate process in Congress, by providing that any future legislation to establish a new exemption to the federal Freedom of Information Act must be stated explicitly within the text of the bill,” Cornyn said in introducing the legislation. “The justification for this provision is simple:  Congress should not establish new secrecy provisions through secret means.  If Congress is to establish a new exemption to FOIA, it should do so in the open and in the light of day.”

Leahy, a longtime champion of FOIA, said: “This is a simple and straightforward bill.  Not every FOIA exemption is inappropriate, but every proposal deserves scrutiny. Congress must be diligent in reviewing new exemptions to prevent possible abuses.  Focusing more sunshine on this process is an antidote to exemption creep.”

Sens. Cornyn and Leahy introduced the Openness Promotes Effectiveness in our National Government Act of 2005 (OPEN Government Act, S. 394) on Feb. 16, and a separate bill on March 10 to establish an advisory Commission on Freedom of Information Act Processing Delays. Other co-sponsors of the OPEN Government Act include Sens. Russell Feingold (D-Wisc.), Lamar Alexander (R-Tenn.), Johnny Isakson (R-Ga.) and Ben Nelson (D-Neb.).

Cornyn and Leahy held a hearing earlier this year that examined the OPEN Government Act. The last time Congress approved major reforms to FOIA was nearly a decade ago, and the Senate Judiciary Committee had not convened an oversight hearing on compliance issues since 1992. The Senate Homeland Security and Governmental Affairs Committee, which shares jurisdiction over federal government information, has not held a FOIA oversight hearing since 1980.

Cornyn was presented with the James Madison Award in 2001 for his efforts as Texas Attorney General to promote open government by the Freedom of Information Foundation of Texas. Sen. Cornyn served previously as Texas Attorney General, Texas Supreme Court Justice, and Bexar County District Judge.

Leahy sponsored the Electronic Freedom of Information Act Amendments, which updated FOIA for the Internet age, and in 1996 he was installed in the Freedom of Information Act Hall of Fame.  Leahy’s statement on the introduction of the bill follows.

 

Statement Of Senator Patrick Leahy
On The Introduction Of Section 8 Of The Open Government Act
June 7, 2005

MR. LEAHY.  For the third time this year, Senator Cornyn and I have joined to introduce common sense proposals to strengthen open government and the Freedom of Information Act, or FOIA.  The Senator from Texas has a long record of promoting open government, most significantly during his tenure as Attorney General of Texas.  He and I have forged a valuable partnership in this Congress to support and strengthen FOIA.  We introduced two bills earlier this year, and held a hearing on our bill, the Open Government Act, issues during Sunshine Week in March. 

The bill we introduce today is simple and straightforward.  It simply requires that when Congress sees fit to provide a statutory exemption to FOIA, it must state its intention to do so explicitly.  The language of this bill was previously introduced as section eight of S.394, the Open Government Act. 

No one argues with the notion that some government information is appropriately kept from public view.  FOIA contains a number of exemptions for national security, law enforcement, confidential business information, personal privacy, and other matters.  One provision of FOIA, commonly known as the (b)(3) exemption, states that records that are specifically exempted by statute may be withheld from disclosure.  Many bills that are introduced contain statutory exemptions, or contain language that is ambiguous and might be interpreted as such by the courts.  In recent years, we have seen more and more such exemptions offered in legislation.  A 2003 Justice Department report stated that Congress has been “increasingly active in enacting such statutory provisions.”  A June 3, 2005, article by the Cox News Service titled, “Congress Cloaks More Information in Secrecy,” pointed to 140 instances “where congressional lawmakers have inserted such exemptions” into proposed legislation.  I commend this article to my colleagues and understand that Senator Cornyn has placed a copy in the Record.  

Our shared principles of open government lead us to believe that individual statutory exemptions should be vigorously debated before lawmakers vote in favor of them.  Sometimes such proposed exemptions are clearly delineated in proposed legislation, but other times they amount to a few lines within a highly complex and lengthy bill.  These are difficult to locate and analyze in a timely manner, even for those of us who stand watch.  As a result, such exemptions are often enacted with little scrutiny, and as soon as one is granted, others are requested. 

The private sector has sought many exemptions in exchange for agreeing to share information with the government.  One example of great concern to me is the statutory exemption for critical infrastructure information that was enacted as part of the Homeland Security Act of 2002, the law that created the Department of Homeland Security.  In this case, a reasonable compromise, approved by the White House, to balance the protection of sensitive information with the public’s right to know was pulled out of the bill in conference.  It was then replaced with text providing an overly broad statutory exemption that undermines Federal and State sunshine laws.  I have introduced legislation, called the Restoration of Freedom of Information Act, to revert to that reasonable compromise language.  

Not every statutory exemption is inappropriate, but every proposal deserves scrutiny.  Congress must be diligent in reviewing new exemptions to prevent possible abuses.  Focusing more sunshine on this process is an antidote to exemption creep.

When we introduced the Open Government Act in February, we addressed this matter with a provision that would require Congress to identify proposed statutory exemptions in newly introduced legislation in a uniform manner.  Today, we introduce that single section as a new bill that we hope can be enacted quickly. 

I want to thank the Senator from Texas for his personal dedication to these issues.  I urge all members of the Senate to join us in supporting this bill.

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