Senate Panel Clears Cornyn-Leahy FOIA Reform

Reform bill would ensure that any future legislative FOIA exemption attempts must be done openly

WASHINGTON—The Senate Judiciary Committee on Thursday cleared legislation authored by U.S. Sens. John Cornyn (R-Texas)  and Patrick Leahy (D-Vt.) to ensure greater openness in the legislative process. The bill (S. 1181), approved by a voice vote, 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 is the third open government reform bill that Leahy, the ranking Democratic member of the Judiciary Committee, and Cornyn, also a member on the panel, have joined together to sponsor.

“This bipartisan legislation will help to ensure an open and deliberate process in Congress, and today’s vote gives me optimism that we will be able to clear this bill in the full Senate soon as well,” Cornyn said following the vote. “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.”

“In recent years, we have seen more of these types of exemptions tucked in legislation, and while some are appropriate, every single one deserves scrutiny. Congress must be diligent in reviewing any new exemptions to prevent possible abuses,” said Leahy, a longtime advocate for open government and FOIA champion.   

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 on March 15 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 is also the sponsor of the RESTORE FOIA Act, a bill that would restore the biggest single rollback FOIA has suffered in its 38-year history, by clarifying an overly broad provision that allows corporate polluters and others to avoid public disclosure of problems simply by stamping them “critical infrastructure information

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(Below is Leahy’s Statement from the Committee’s Meeting)

Statement of Senator Patrick Leahy
Ranking Member, Judiciary Committee
On S.1181 – Cornyn-Leahy FOIA Bill
Executive Business Meeting
June 9, 2005

For the third time this year, Senator Cornyn and I have joined together to introduce common sense proposals to strengthen open government and the Freedom of Information Act. 

The bill on today’s agenda was just introduced on Tuesday, but it is simply a single section of a broader FOIA bill that we introduced in February.   

This bill, S.1181, is very straightforward.  It merely requires that when Congress sees fit to provide a statutory exemption to FOIA, it must state its intention to do so explicitly.  No one argues with the notion that some government information is appropriately kept from public view, and therefore, FOIA contains a number of exemptions.   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. 

We 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. 

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. The solution is to require Congress to identify proposed statutory FOIA exemptions in newly introduced legislation in a uniform manner. 

I urge all members of the Committee to support this bill.

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