Freedom Of Information Act Exemptions

FREEDOM OF INFORMATION ACT EXEMPTIONS -- (Senate - June 24, 2005)

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Mr. CORNYN. Mr. President, I rise to express strong support for S. 1181, concerning the Federa1 Freedom of Information Act--or FOIA. The bill is cosponsored by Senator LEAHY--with whom I am pleased to be working on a number of FOIA issues--as well as by Senators ALEXANDER, FEINGOLD, ISAKSON, and SPECTER. I am pleased that S. 1181 enjoys strong bipartisan support and the support of numerous organizations across the ideological spectrum. I can't imagine a more commonsense, good government bill. It should not be controversial. I am aware of any opposition to it. I am informed that the administration has no concerns about it. The Senate Judiciary Committee approved the measure by voice vote on June 9, and I am hopeful that the Senate will take up this matter shortly.

On February 16, shortly before the President's Day recess, the Senator from Vermont and I introduced the OPEN Government Act of 2005, S. 394--bipartisan legislation to promote accountability, accessibility, and openness in government, principally by strengthening and enhancing the Federal law commonly known as the Freedom of Information Act. On March 15, the Terrorism subcommittee convened a hearing on that legislation. Like S. 1181, the OPEN Government Act is a good bill to strengthen and enhance FOIA. But I recognize that the OPEN Government Act will take some time to work through.

When I served as attorney general of Texas, it was my responsibility to enforce Texas's open government laws. I am pleased to report that Texas is known for having one of the strongest set of open government laws in our Nation. And since that experience, I have long believed that our Federal Government could use ``a little Texas sunshine.'' I am thus especially enthusiastic about the OPEN Government Act because that bill attempts to incorporate some of the most important principles and elements of Texas law into the Federal Freedom of Information Act. And I am gratified that Senators ALEXANDER, FEINGOLD, ISAKSON, and NELSON of Nebraska are cosponsors of this bipartisan Cornyn-Leahy legislation.

The OPEN Government Act is the culmination of months of extensive discussions between the offices of Senators CORNYN and LEAHY and members of the requestor community. It is supported by Texas Attorney General Greg Abbott and a broad coalition of organizations across the ideological spectrum, including:

American Association of Law Libraries; American Civil Liberties Union; American Library Association: American Society of Newspaper Editors; Associated Press Managing Editors; Association of Alternative Newsweeklies; Association of Health Care Journalists; Center for Democracy & Technology; Coalition of Journalists for Open Government; Committee of Concerned Journalists; Common Cause; Defenders of Property Rights; Education Writers Association; Electronic Privacy Information Center; Federation of American Scientists/Project on Government Secrecy; Free Congress Foundation/Center for Privacy & Technology Policy; Freedom of Information Center, Univ. of Mo.; The Freedom of Information Foundation of TX; The Heritage Foundation/Center for Media and Public Policy; Information Trust; League of Women Voters of the United States; Liberty Legal Institute; Magazine Publishers of America; National Conference of Editorial Writers; National Freedom of Information Coalition; National Newspaper Association; National Press Club; National Security Archive/Geo. Wash. Univ.; Newspaper Association of America; OMB Watch; One Nation Indivisible; OpenTheGovernment.org; People for the American Way; Project on Government Oversight; Radio-Television News Directors Association; Reporters Committee for Freedom of the Press; Society of Environmental Journalists.

I am particularly pleased to report the recent endorsements of three conservative public interest groups--one devoted to the defense of property rights--Defenders of Property Rights, led by Nancie G. Marzulla--one devoted to the issue of racial preferences in affirmative action programs--One Nation Indivisible, led by Linda Chavez--and one devoted to the protection of religious liberty--Liberty Legal Institute, led by Kelly Shackelford.

This broad and diverse support across political parties and across the ideological spectrum is important because it demonstrates that the cause of open government is neither a Republican nor a Democrat issue--neither a conservative nor a liberal issue. Rather, it is an American issue. Accordingly, I look forward to future Senate action on the OPEN Government Act.

In the meantime, S. 1181 should be very easy for the Senate to approve today. It simply implements section 8 of the OPEN Government Act. It would simply 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. Specifically, any future attempt to create a new so-called ``(b)(3) exemption'' to the Federal FOIA law must specifically cite section (b)(3) of FOIA if it is to take effect.

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. FOIA establishes a presumption of disclosure. But if documents are to be kept secret pursuant to a future act of Congress, as is sometimes appropriate and necessary, we should at least make sure that that act of Congress itself not be undertaken in secret.

I want to be clear: This bill does not affect current law in any way, and it does not affect the executive branch in any direct way. It only applies to the process through which Congress must enact any FOIA exemption in the future. For those who are interested in the technical aspects of this bill, I will point out that this provision is modeled after other Federal laws--such as the War Powers Resolution--50 U.S.C. §1547(a)--and the Federal Vacancies Reform Act--5 U.S.C. §3347--which also require Congress to act in an explicit fashion in order to carry out particular objectives. Think of it as a direction to the courts--a canon of interpretation, advising on how to construe future acts of Congress.

Senator LEAHY and I firmly believe that all of the provisions of the OPEN Government Act are important--and that, as a recent Cox News Service report demonstrates, section 8 in particular is a worthy provision that can and should be quickly enacted into law.

July 4 is the anniversary of the 1966 enactment of the original Federal Freedom of Information Act. Accordingly, we have devoted our efforts this month to getting section 8 approved by Congress and submitted to the President for his signature by that anniversary date. Toward that end, we ask our Senate colleagues to support this measure. And we look forward to working with our colleagues in the House--including Representatives LAMAR SMITH and BRAD SHERMAN, the lead sponsors of the OPEN Government Act in the House, H.R. 867; Chairman TOM DAVIS, who leads the House Committee on Government Reform; Chairman TODD PLATTS, who leads the House Government Reform Subcommittee that recently held a hearing to review the Federal FOIA law; and Representatives HENRY WAXMAN and EDOLPHUS TOWNS, the ranking members of the committee and subcommittee.

S. 1181 is a commonsense, uncontroversial provision that deserves the support of every Member of Congress. I hope that it can be enacted into law quickly, and that Congress will then move to consider the other important provisions of the OPEN Government Act.

I ask unanimous consent that a copy of the news report I previously mentioned be printed in the RECORD.

There being no objection, the material was ordered to be printed in the Record, as follows:

[From the Cox News Service, Jun. 3, 2005]
Congress Cloaks More Information in Secrecy
(By Rebecca Carr)

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