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Senators Offer Tightly Focused FOIA Bill

Sens. John Cornyn (R-Texas) and Patrick Leahy (D-Vt.) introduced a bill this week that would make it more difficult for Congress to slip provisions into legislation allowing federal agencies to escape disclosure under the Freedom of Information Act.

Alarmed by the growing frequency with which Congress quietly exempts information from disclosure, Cornyn and Leahy’s proposal would require that any future legislation containing exemptions to FOIA be stated explicitly within the text of the bill.

The two maintain they are not opposed to exempting certain federal programs from FOIA per se, just that they want the process to be an open one.

“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,” Cornyn said in a statement.

Earlier this year the two introduced broader legislation to recalibrate FOIA, as well as a separate bill to establish an advisory commission to assess backlogs in processing requests. The larger bill, the OPEN Government Act, aims to close loopholes in the current law, ensure timely responses to FOIA requests and create incentives for agencies to provide information promptly.

The provision regarding Congress’ clandestine exemptions was originally included in that legislation. Sensing that it was likely to take a while for that measure to make it through the Judiciary Committee, Cornyn and Leahy decided to extract what they believe is an easily passable portion and try to get it enacted as a stand alone measure.

“Not every FOIA exemption is inappropriate, but every proposal deserves scrutiny,” Leahy said. “Focusing more sunshine on this process is an antidote to exemption creep.”

There have been dozens of instances in which Congress has exempted certain federal programs from FOIA by line-item. For example, in the 2004 omnibus appropriations bill, a provision was inserted stating that no funds could be used to disclose records about firearms tracking to the public.

The exemptions also appear in pending legislation in both chambers. A bill introduced in the House to create an electronic livestock trading system would exempt the program from FOIA provisions. Additionally, an asbestos bill moving through the Senate contained a similar exclusion before Leahy and Cornyn successfully had it amended. They wanted to make clear that participating companies would not get an automatic exemption, rather FOIA’s existing safeguards for business-related records would apply.

Although the two took a stance in that particular case, their bill does not take a position on the validity of individual FOIA exemptions. It would provide only that those provisions explicitly labeled as exemptions to the Freedom of Information Act and are not slipped into legislation under more innocuous-sounding language.

In a floor speech, Cornyn argued that his latest FOIA legislation is noncontroversial. It remains to be seen, however, if and where resistance might crop up toward his and Leahy’s other efforts.

Often championed by liberal groups, FOIA is viewed with some suspicion by conservatives. Anticipating possible opposition from his own party, Cornyn recently cited the endorsement of three conservative public interest groups to his latest effort. Those were in addition to the conservative, liberal and nonideological groups and media organizations that have formed a coalition to support greater government openness.

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