As FOIA Anniversary and July 4th Near, Senate Judiciary Chairman Leahy Presses For Passage of The Leahy-Cornyn OPEN Government Act to Strengthen Nation’s Foremost Right-To-Know Law

WASHINGTON (Wednesday, June 27) – Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) Wednesday noted the upcoming 41st anniversary of the Freedom of Information Act (“FOIA”) and urged lawmakers to pass the Openness Promotes Effectiveness in our National Government Act (“OPEN Government Act,” S. 849).  The bipartisan legislation would update FOIA for the first time in ten years.  

Introduced jointly by Senators Leahy and John Cornyn (R-Texas), the bill has broad support in the Senate.  The Judiciary Committee approved it earlier this year, but the bill has been stalled on the Senate floor since then by a Republican “hold.”

“Responsive government and transparent decision making are bedrock American values,” Leahy said.  “FOIA honors and helps translate those values into practice, and the OPEN Government Act will help FOIA work better in serving the public’s interest.”

Official Statement from Chairman Leahy:

Mr. LEAHY:  Mr. President, on July 4th, the Nation will celebrate the 41st anniversary of the Freedom of Information Act (“FOIA”), landmark legislation that has guaranteed the public’s “right to know” for generations of Americans.  Regrettably, the Senate will mark this very important anniversary without having passed the Openness Promotes Effectiveness in our National Government Act” (the “OPEN Government Act”), S.849, comprehensive legislation that Senator Cornyn and I introduced earlier this year to strengthen and reinvigorate FOIA for all Americans.  

Responsive government and transparent decision making are bedrock American values, FOIA honors and helps translate those values into practice, and the OPEN Government Act will help FOIA work better in serving the public’s interest.

The Judiciary Committee favorably reported this bipartisan legislation in April.  But a Republican hold is delaying consideration of this important FOIA reform bill.  The Senate Republican leadership has also ignored requests to debate this bill on the Senate Floor, needlessly stalling these long-overdue, bipartisan reforms to strengthen FOIA.

The Timeless Legacy of FOIA

For more than four decades, FOIA’s timeless values of openness and transparency in government have ensured access to government information.  Just this week, we witnessed the great value of FOIA in shedding light on a controversial policy within the Office of the Vice President regarding the handling of classified information, with news reports that a FOIA request to the Justice Department first revealed that the Attorney General may have delayed a review into the legality of this troubling policy.

Although FOIA remains an indispensable tool in shedding light on bad policies and government abuses, this open government law is being hampered by excessive delays and lax FOIA compliance.  Today, Americans who seek information under FOIA remain less likely to obtain it than during any other time in FOIA’s 40-plus year history.  According to the National Security Archive, an independent research institute, the oldest outstanding FOIA requests date back to 1989, before the collapse of the Soviet Union .  

Moreover, more than a year after the President’s FOIA executive order to improve agency FOIA performance, FOIA backlogs are at an all-time high.  According to a recent report by the Government Accountability Office, federal agencies had 43 percent more FOIA requests pending and outstanding in 2006 than in 2002.  In addition, the percentage of FOIA requestors who obtained at least some of the information that they requested from the Government declined by 31 percent in 2006, according to a study by the Coalition of Journalists for Open Government.

A Wise Investment in our Democracy

As the first major reform to FOIA in more than a decade, the OPEN Government Act would help to reverse these troubling trends and to restore the public’s trust in their government.  In so doing, this bill is a fitting tribute to FOIA and a wise investment in our American Democracy.

The OPEN Government Act promotes and enhances public disclosure of government information under FOIA by helping Americans to obtain timely responses to their FOIA requests.  This bill also improves transparency in the federal government’s FOIA process by:

*     Restoring meaningful deadlines for agency action under FOIA;

*     Imposing real consequences on federal agencies for missing FOIA’s 20-day statutory deadline;

*     Clarifying that FOIA applies to government records held by outside private contractors;

*     Establishing a FOIA hotline service for all federal agencies; and

*     Creating a FOIA Ombudsman to provide FOIA requestors and federal agencies with a meaningful alternative to costly litigation. 

Let me also be clear about what this bill does not do.  This bill does not harm or impede in any way the Government’s ability to withhold or protect classified information.  Classified, national security and homeland security-related information are all expressly exempt from FOIA’s disclosure mandate and this bill does nothing to alter these important exemptions.  Senator Cornyn and I have also offered an amendment to this bill that would preserve the right of federal agencies to assert these and other FOIA exemptions, even if agencies miss the 20-day statutory deadline under FOIA.

The OPEN Government Act is cosponsored by a bipartisan group of 13 Senators, including the bill’s lead Republican cosponsor, Senator Cornyn.  This bill is also endorsed by more than 115 business, public interest, and news organizations from across the political and ideological spectrum, including the American Library Association, the U.S. Chamber of Commerce, OpenTheGovernment.org, Public Citizen, the Republican Liberty Caucus, the Sunshine in Government Initiative and the Vermont Press Association.  I thank all of the cosponsors of this bill for their commitment to open government.  I also thank the many organizations that have endorsed the OPEN Government Act for their support of this legislation.

The OPEN Government Act is a good government bill that Democrats and Republicans, alike, can and should work together to enact.  If there are legitimate concerns with this bill, those concerns should be openly debated and the Senate should promptly pass this legislation.

Senator Cornyn and I both know that open government is not a Democratic issue or a Republican issue.  It is an American issue.  It is in this bipartisan spirit that I urge the Senate to promptly consider the OPEN Government Act and that I encourage all Senators to support this important FOIA reform legislation.  

I ask unanimous consent that a list of the bill’s supporters be printed in the Record following my remarks.

Brown, Sherrod [OH], Cardin, Benjamin L. [MD], Cornyn, John [TX], Durbin, Richard [IL], Feingold, Russell D. [WI], Isakson, Johnny [GA], Kerry, John F. [MA], Landrieu, Mary L. [LA], McCaskill, Claire [MO], Obama, Barack [IL], Sanders, Bernard [VT], Specter, Arlen [PA].