Senate Approves Cornyn-Leahy FOIA Reform

Reform Bill Would Ensure That Any Future Legislative FOIA Exemption Attempts Be Transparent

WASHINGTON (Friday, June 24) -- Legislation passed by the U.S. Senate on Friday will bring increased sunshine to the federal legislative process, and was another step toward strengthening the Freedom of Information Act (FOIA), its sponsors say. The reform, authored by U.S. Sens. John Cornyn (R-Texas), and Patrick Leahy (D-Vt.) creates additional legislative transparency by requiring that any future legislation containing exemptions to requirements be “stated explicitly within the text of the bill.” The bill (S. 1181) was the latest in a series of FOIA reform bills filed by Leahy, the ranking Democratic member of the Judiciary Committee, and Cornyn, a member of the panel.

“If Congress is to establish a new exemption to FOIA, it should do so in the open and in the light of day, and the unanimous passage of this legislation makes clear that the Senate understands the need for that reform,” Cornyn said following the vote. “The default position of our government must be one of openness. If records can be open, they should be open. If good reason exists to keep something closed, it is the government that should bear the burden – not the other way around.”

Leahy, a longtime advocate in Congress for open government and a FOIA champion, said: “In passing this bill, the Senate has taken a step toward helping Congress be diligent in reviewing these exemptions to prevent possible abuses. The American people deserve our ongoing diligence in limiting undue exemptions that only serve to clog the plumbing and limit the public’s right to know.”

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)

Statement of Senator Patrick Leahy
On Passage of Section 8 of the Open Government Act
June 24, 2005

MR. LEAHY.  Earlier this month, Senator Cornyn and I introduced a simple and straightforward bill to strengthen open government and the Freedom of Information Act, or FOIA.  It was the third commonsense proposal on government openness that we have offered to the Senate this year.  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 productive partnership in this Congress to support and strengthen FOIA.  We introduced two bills earlier this year and held a hearing on our bill, S.394, the Open Government Act, during Sunshine Week in March. 

The bill we pass today 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 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. 

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 separate 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.  The American people deserve our ongoing diligence in limiting undue exemptions that only serve to clog the plumbing and limit the public’s right to know.

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 pass that single section as a new bill.  I urge the House to take action quickly and the President to sign this bill into law.

I want to thank the Senator from Texas for his personal dedication to these issues, and I thank all Senators for their support of this bill.

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