Congressional Record: June 7, 2005 (Senate)
Page S6159-S6161


      Mr. CORNYN (for himself, Mr. Leahy, Mr. Feingold, and Mr. 
  S. 1181. A bill to ensure an open and deliberate process in Congress 
by providing that any future legislation to establish a new exemption 
to section 552 of title 5, United States Code (commonly referred to as 
the Freedom of Information Act) be stated explicitly within the text of 
the bill; to the Committee on the Judiciary.
  Mr. CORNYN. Mr. President, 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. 
  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 sets 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 legislation 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 the bipartisan 
Cornyn-Leahy bill.
  This legislation enjoys broad support across the ideological 
spectrum. Indeed, since its introduction on February 16, the 
legislation has attracted additional support. In particular, I am 
pleased to report the 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. I ask unanimous consent that their endorsement letters be 
printed in the Record at the close of my remarks. The point of 
including these letters in the Record, of course, is not that these 
groups are right or wrong in the pursuit of their respective causes, 
but 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.
  I would like to take a few moments to emphasize one particular 
provision of the Cornyn-Leahy bill--section 8. It is a common sense 
provision. This provision should not be at all controversial, and 
indeed, I am not aware of any opposition whatsoever to it. The 
provision 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.
  A recent news report published by the Cox News Service amply 
demonstrates the importance of this issue, and specifically emphasizes 
the need for section 8 of the Cornyn-Leahy bill. I ask unanimous 
consent that a copy of this news report be printed at the close of my 
  Senator Leahy and I firmly believe that all of the provisions of the 
OPEN Government Act are important--and that, as the recent Cox News 
Service report demonstrates, section 8 in particular is a worthy 
provision that can and should be quickly enacted into law. We note that 
July 4 is the anniversary of the 1966 enactment of the original Federal 
Freedom of Information Act. Accordingly, we plan to devote 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 rise today to introduce separate legislation to 
enact section 8 of the OPEN Government Act into law. We ask our 
colleagues in this chamber to support this measure, first in the Senate 
Judiciary Committee, and then on the floor of the United States Senate. 
And we look forward to working with our colleagues in the House--
including Representative Lamar Smith, the lead sponsor of the OPEN 
Government Act in the House, H.R. 867, as well as Chairman Tom Davis, 
who leads the House Committee on Government Reform, and Chairman Todd 
Platts, who leads the House Government Reform subcommittee that 
recently held a hearing to review the Federal FOIA law.
  Section 8 of the Cornyn-Leahy bill is a common-sense, uncontroversial 
provision that deserves the support of every member of Congress. It 
simply provides that, when Congress enacts legislation--specifically, 
legislation to exempt certain documents from disclosure under FOIA--it 
do so in the open. After all, if documents are to be kept secret by an 
act of Congress, we should at least make sure that that very act of 
Congress itself not be undertaken in secret.

[[Page S6160]]

  A Senate Judiciary subcommittee held a hearing on the OPEN Government 
Act on March 15. I hope that at least section 8 of the legislation can 
be enacted into law quickly, and that Congress will then move to 
consider the other important provisions of the bill.
  There being no objection, the letters were ordered to be printed in 
the Record, as follows:

                                                     May 25, 2005.
     Hon. John Cornyn,
     Hart Senate Office Building,
     Washington, DC.
       Dear Senator Cornyn: On behalf of the Defenders of Property 
     Rights, I would like to commend you on your introduction of 
     the Openness Promotes Effectiveness in our National 
     Government Act of 2005 (OPEN Government Act). With this 
     legislation, Americans can have confidence that their 
     government is operating honestly and efficiently.
       This proposed bill would be invaluable in aiding our quest 
     to protect the private property rights of all Americans. The 
     bill is beneficial for property rights plaintiffs--it puts 
     teeth into the requirement that the government timely respond 
     to requests while still protecting private property rights. 
     For instance, under the bill, if an agency does not respond 
     within the required 20 days, the agency may not assert any 
     exemption under subsection (b) of the bill unless disclosure 
     would endanger national security, ``disclose personal private 
     information protected by section 552a or proprietary 
     information,'' or would otherwise be prohibited by law. The 
     bill also provides for better review of agencies' responses 
     to FOIA requests and for disciplinary actions for arbitrary 
     and capricious rejections of requests. If passed, this bill 
     would surely help private property owners obtain faster 
     access to information regarding actions that have taken their 
     property--and provide better enforcement if they do not.
       Your bill has our full and enthusiastic endorsement. We 
     thank you for your steadfast commitment to liberty, open 
     government, and constitutionally guaranteed property rights.
           Yours truly,
                                               Nancie G. Marzulla,

                                       One Nation Indivisible,

                                                     May 19, 2005.
     Senator John Cornyn,
     U.S. Senate,
     Washington, DC.
       Dear Senator Cornyn: I am writing to tell you that One 
     Nation Indivisible supports the OPEN Government Act of 2005. 
     Good luck with its passage.
     Linda Chavez.

                                      Liberty Legal Institute,

                                                     June 1, 2005.
Re: ``OPEN Government Act'' bill

     Hon. John Cornyn,
     U.S. Senate, Washington, DC.
       Dear Senator Cornyn: We are fully on board with your 
     efforts on Freedom of Information Act improvements. The 
     government should be open to its people. This is a core 
     requirement in any free society.
       FOIA currently has little enforcement capability and was 
     also hurt by the wrongly decided Buckhannon decision. 
     Citizens deserve the protection of FOIA and the changes you 
     are proposing.
       Please put us on your endorsement list for the ``OPEN 
     Government Act'' bill. In fact, we strongly believe the 
     Buckhannon error needs to be corrected for all Sec. 1983 
       Last, even more abusive recently is the abuse of Rule 68 to 
     threaten and intimidate citizens already victimized once by 
     government officials. The idea that civil rights victims, who 
     win their suit (usually for just nominal damages), may have 
     to pay the government's costs is obscene and a complete 
     violation of Congressional intent. I hope we can fix this as 
       Thank you for your service to all Texans.
                                                Kelly Shackelford,
                           Chief Counsel, Liberty Legal Institute.

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

               [From the Cox News Service, June 3, 2005]

              Congress Cloaks More Information in Secrecy

                           (By Rebecca Carr)

       Washington.--Few would argue with the need for a national 
     livestock identification system to help the federal 
     government handle a disease outbreak such as mad cow.
       But pending legislation calling for the nation's first 
     electronic livestock tracking system would prohibit the 
     public from finding out anything about animals in the system, 
     including the history of a cow sick with bovine spongiform 
       The only way the public can find out such details is if the 
     secretary of agriculture makes the information public.
       That's because the legislation, sponsored by Rep. Collin C. 
     Peterson, D-Minn., includes a provision that exempts 
     information about the system from being released under the 
     Freedom of Information Act.
       Formally called the ``third exemption,'' it is one of nine 
     exemptions the government can use to deny the release of 
     information requested under the FOI Act.
       Open government advocates say it is the most troubling of 
     the nine exemptions because it allows Congress to cloak vital 
     information in secrecy through legislation, often without a 
     public hearing or debate. They say Congress frequently 
     invokes the exemption to appease private sector businesses, 
     which argue it is necessary to protect proprietary 
       ``It is an easy way to slap a secrecy stamp on the 
     information,'' said Rick Blum, director of, a coalition of more than 30 groups 
     concerned about government secrecy.
       The legislative intent of Congress is far more difficult to 
     challenge than a federal agency's denial for the release of 
     information, said Kevin M. Goldberg, general counsel to the 
     American Society of Newspaper Editors.
       ``This secrecy is often perpetuated in secret as most of 
     the (third exemption) provisions consist of one or two 
     paragraph tucked into a much larger bill with no notice that 
     the Freedom of Information Act will be affected at all,'' 
     Goldberg said.
       There are at least 140 cases where congressional lawmakers 
     have inserted such exemptions, according to a 2003 Justice 
     Department report.
       The report notes that Congress has been ``increasingly 
     active in enacting such statutory provisions.''
       The exemptions have become so popular that finding them in 
     proposed legislation is ``like playing a game of Wackamole,'' 
     one staffer to Sen. Patrick Leahy, D-Vt., joked. ``As soon as 
     you handle one, another one pops up.''
       Congress used the exemption in its massive Homeland 
     Security Act three years ago, granting businesses protection 
     from information disclosure if they agreed to share 
     information about the vulnerabilities of their facilities.
       And in another twist on the exemption, Congress inserted a 
     provision into the Consolidated Appropriations Act of 2004 
     that states that ``no funds appropriated under this or any 
     other act may be used to disclose'' records about firearms 
     tracking to the public.
       Government agencies have also sought protection from 
     information disclosure.
       For example, Congress passed an amendment to the National 
     Security Act in 1984 that exempted the CIA from having to 
     comply with the search and review requirements of the FOI Act 
     for its ``operational files.''
       Most of the information in those files, which included 
     records about foreign and counterintelligence operations was 
     already protected from disclosure under the other exemptions 
     in the FOI Act.
       But before Congress granted the exemption, the agency had 
     to search and review each document to justify withholding the 
     information, which cost time and money.
       Open government advocates say many of the exemptions 
     inserted into legislation are not justified.
       ``This is back door secrecy,'' said Thomas Blanton, 
     executive director of the National Security Archive at George 
     Washington University, a nonprofit research institute based 
     in Washington.
       When an industry wants to keep information secret, it seeks 
     the so-called third exemption, he said.
       ``It all takes place behind the sausage grinder,'' Blanton 
     said. ``You don't know what gristle is going through the 
     sport, you just have to eat it.''
       But Daniel J. Metcalfe, co-director of the Justice 
     Department's Office of Information and Privacy, said the 
     exception is crucial to the FOI Act's structure.
       In the case of the animal identification bill, the 
     exemption is critical to winning support from the cattle 
     industry and on Capitol Hill.
       ``If we are going to develop an animal ID system that's 
     effective and meaningful, we have to respect participants' 
     private information,'' said Peterson, the Minnesota lawmaker 
     who proposed the identification system. ``The goal of a 
     national animal I.D. system is to protect livestock owners as 
     well as the public.''
       As the livestock industry sees it, it is providing 
     information that will help protect the public health. In 
     exchange for proprietary information about their herds, they 
     believe they should receive confidence that their business 
     records will not be shared with the public.
       ``The producers would be reluctant to support the bill 
     without the protection,'' said Bryan Dierlam, executive 
     director of government affairs at the National Cattleman's 
     Beef Association.
       The animal identification on bill provides the government 
     with the information it needs to protect the public in the 
     event of an disease out break, Dierlam said. ``But it would 
     protect the producers from John Q. Public trying to willy-
     nilly access their information.''
       Food safety experts agree there is a clear need for an 
     animal identification system to protect the public, but they 
     are not certain that the exemption to the FOI Act is 
       ``It's sad that Congress feels they have to give away 
     something to the cattle industry to achieve it,'' said 
     Caroline Smith DeWaal, director of the food safety program at 
     the Center for Science in the Public Interest, a nonprofit 
     organization based in Washington.
       Slipping the exemption into legislation without notice is 
     another problem cited by open government advocates!.
       It has become such a problem that the Senate's strongest 
     FOI Act supporters, Sen.

[[Page S6161]]

     John Cornyn, R-Texas, and Sen. Patrick Leahy, D-Vt., proposed 
     that lawmakers be required to uniformly identify the 
     exemption in all future bills.
       ``If Congress wants to create new exemptions, it must do so 
     in the light of day,'' Cornyn said. ``And it must do so in a 
     way that provides an opportunity to argue for or against the 
     new exemption--rather than have new exemptions creep into the 
     law unnoticed.''
       Leahy agreed, saying that Congress must be diligent in 
     reviewing new exemptions to prevent possible abuses.
       ``In Washington, loopholes tend to beget more loopholes, 
     and it's the same with FOI Act exemptions,'' Leahy said. 
     ``Focusing more sunshine on this process is an antidote to 
     exemption creep.''

  Mr. LEAHY. For the third time this year, Senator Cornyn and I have 
joined to introduce common sense proposals to strengthen open 
government and the Freedom of Information Act, or FOIA. 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 valuable partnership in this Congress to support and 
strengthen FOIA. We introduced two bills earlier this year, and held a 
hearing on our bill, the Open Government Act, issues during Sunshine 
Week in March.
  The bill we introduce today is simple and straightforward. It 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 S. 394, 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. I commend 
this article to my colleagues and understand that Senator Cornyn has 
placed a copy in the Record.
  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 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.
  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 introduce that single section as a new bill 
that we hope can be enacted quickly.
  I want to thank the Senator from Texas for his personal dedication to 
these issues. I urge all members of the Senate to join us in supporting 
this bill.