A Ray of Hope On The Horizon For FOIA
Op-Ed
March 14, 2008
By Sens. Patrick Leahy and John Cornyn
This year’s Sunshine Week brings new rays of hope for the public’s
right to know. The first reform to strengthen the Freedom of
Information Act (FOIA) in more than a decade is newly on the books,
and increasing government transparency is becoming a greater part of
public debate and discussion.
With last year’s enactment of the bipartisan Leahy-Cornyn Openness
Promotes Effectiveness in our National Government (“OPEN
Government”) Act, Congress signaled an interest in seeking more
openness and accountability in monitoring government’s activities.
The OPEN Government Act will help restore accountability in
processing Americans’ FOIA requests, and it will help pull back the
veil of secrecy that many feel has burdened our democracy for too
long. This law will also protect the public’s right to know by
ensuring that anyone who seeks information under FOIA, including
freelance journalists and bloggers, can seek FOIA fee waivers.
But there are still challenges ahead. We were disappointed last
month when the White House buried a provision in the
Administration’s FY 2009 budget proposal that would move the
functions of the new Office of Government Information Services (OGIS),
which was created under the OPEN Government Act, from the
independent National Archives and Records Administration to the
Department of Justice. The President’s proposal is not only
contrary to the express intent of the Congress, but it runs counter
to the new law’s purpose -- to ensure the timely and fair resolution
of Americans’ FOIA requests.
The Office of Government Information Services was established to
mediate FOIA disputes between federal agencies and FOIA requestors,
review and evaluate agency FOIA compliance, and house the newly
established FOIA ombudsman, among other things. When we drafted the
OPEN Government Act, we intentionally anchored this vital office in
the National Archives, so that OGIS would be free from the influence
of the federal agency that litigates FOIA disputes – the Department
of Justice. We also wanted OGIS to be set within the apolitical
National Archives to nurture the new office’s independence, so that
all Americans can be confident that their FOIA requests will be
addressed openly and fairly.
Given the clear intent of Congress to establish OGIS as an
independent office in the National Archives, the President’s budget
proposal should not -- and cannot -- go unchallenged. In addition,
given the Justice Department’s own record on FOIA compliance -- a
recent BNA article found that the Justice Department’s Office of
Information Policy is burdened by increasing FOIA backlogs -- it is
difficult to justify entrusting the department with overseeing the
processing of American’s FOIA requests.
When the Congress unanimously passed the OPEN Government Act just a
few months ago, Democrats and Republicans alike joined together in
promising the American people a more open and transparent
government. We intend to work to ensure that that this was not an
empty promise, but one that will be honored and fulfilled with a
fully funded and operational Office of Government Information
Services in the National Archives.
We also intend to build upon the important FOIA reform work that we
began last year. Just in time for this year’s Sunshine Week, we
have introduced new legislation to shed more light on the growing
use of legislative exemptions to FOIA. The OPEN FOIA Act will
require that when Congress provides for a statutory exemption to
FOIA in new legislation, Congress must state its intention to do so
explicitly and clearly in the bill. While we do not question the
need to keep certain government information secret to ensure the
public good, the excessive use of legislative exemptions to FOIA to
withhold information from the public can harm our democracy. Our
bill will ensure openness and clarity about how we treat one of our
most important open government laws, by allowing more sunshine into
the process of creating legislative exemptions to FOIA.
More that two centuries
ago, Patrick Henry proclaimed that “[t]he liberties of a people
never were, nor ever will be, secure, when the transactions of their
rulers may be concealed from them.” These words remain as true
today as they were 200 years ago. For more than four
decades, FOIA has been perhaps the most important federal law to
ensure the public’s right to know and to balance the government’s
power with the need for government accountability.
As the recent legislative success with the OPEN Government Act shows
us, open government is not a Democratic issue or a Republican
issue. It is an American value and a virtue that all Americans can
embrace. Sunshine Week gives us the chance to celebrate our
successes, and evaluate the challenges that lie ahead as we work to
further strengthen laws to protect the public’s right to know. To
hold our government truly accountable, we must shine light on the
decisions being made in the name of the American people. With the
first major reforms to FOIA in more than a decade now under its
belt, Congress must do everything within its power to continue to
make sure that one of our most important open government laws is
fully and faithfully enforced, so that we can let the sun shine on
the most important actions of our government.
# # # # #
[Sen. Patrick Leahy (D-Vt.) was installed in the Freedom Of
Information Act Hall of Fame in 1996. He is the author of the
Electronic FOIA Amendments of 1996 and co-author of the OPEN
Government Act, a comprehensive bill to improve FOIA’s
implementation. Sen. John Cornyn (R-Texas) is the other co-author
of the OPEN Government Act, and has long been a champion of open
government. He has co-authored several open government bills in the
Senate and supported numerous transparency measures. As Texas
Attorney General, he also took ground-breaking measures to increase
transparency.]