[Congressional Record: March 17, 2009 (Senate)]
[Page S3175-S3176]


      By Mr. LEAHY (for himself and Mr. Cornyn):
  S. 612. A bill to amend section 552(b)(3) of title 5, United States 
Code (commonly referred to as the Freedom of Information Act) to 
provide that statutory exemptions to the disclosure requirements of 
that Act shall specifically cite to the provision of that Act 
authorizing such exemptions, to ensure an open and deliberative process 
in Congress by providing for related legislative proposals to 
explicitly state such required citations, and for other purposes; to 
the Committee on the Judiciary.
  Mr. LEAHY. Mr. President, this week, our Nation celebrates Sunshine 
Week--a time to recognize and promote openness in our Government. At 
this important time of year, I am pleased to join with Senator Cornyn 
to reintroduce the OPEN FOIA Act--a bipartisan bill to promote more 
openness regarding statutory exemptions to the Freedom of Information 
Act, FOIA.
  This bipartisan bill builds upon the work that Senator Cornyn and I 
began several years ago to reinvigorate and strengthen FOIA. Together, 
we introduced, and Congress ultimately enacted, the OPEN Government 
Act--the first major reforms to FOIA in more than a decade. I thank 
Senator Cornyn for his work and leadership on this important issue. I 
also thank President Obama--who was a cosponsor of the OPEN Government 
Act when he was in the Senate--for his deep commitment to FOIA. 
President Obama clearly demonstrated his commitment to open Government 
when he issued a new directive to strengthen FOIA during his first full 
day in office.
  The OPEN FOIA Act simply requires that when Congress provides for a 
statutory exemption to FOIA in new legislation, Congress must state its 
intention to do so explicitly and clearly. This commonsense bill 
mirrors bipartisan legislation that the Judiciary Committee favorably 
reported, and the Senate unanimously passed, during the 109th Congress, 
S. 1181. While no one can fairly question the need to keep certain 
Government information secret to ensure the public good, excessive 
Government secrecy is a constant temptation and the enemy of a vibrant 
  For more than four decades, FOIA has served as 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. The Freedom of Information Act contains a number of 
exemptions to its disclosure requirements for national security, law 
enforcement, confidential business information, personal privacy and 
other circumstances. The FOIA exemption commonly known as the ``(b)(3) 
exemption,'' requires that Government records that are specifically 
exempted from FOIA by statute be withheld from the public. In recent 
years, we have witnessed an alarming number of FOIA (b)(3) exemptions 
being offered in legislation--often in very ambiguous terms--to the 
detriment of the American public's right to know.
  The bedrock principles of open Government lead me to believe that 
(b)(3) statutory exemptions should be clear and unambiguous, and 
vigorously debated before they are enacted into law. Too often, 
legislative exemptions to FOIA are buried within a few lines of very 
complex and lengthy bills, and these new exemptions are never debated 
openly before becoming law. The consequence of this troubling practice 
is the erosion of the public's right to know, and the shirking of 
Congress' duty to fully consider these exemptions.
  The OPEN FOIA Act will help stop this practice and shine more light 
on the process of creating legislative exemptions to FOIA. That will be 
the best antidote to the ``exemption creep'' that we have witnessed in 
recent years.
  When he recently addressed a joint session of the Congress and the 
American people, President Obama said that ``I know that we haven't 
agreed on every issue thus far, and there are surely times in the 
future when we will part ways. But, I also know that every American who 
is sitting here tonight loves this country and wants it to succeed. 
That must be the starting point for every debate we have in the coming 
months, and where we return after those debates are done.''
  Sunshine Week reminds all of us that open Government is not a 
Democratic issue, nor a Republican issue. It is an American issue and a 
virtue that all Americans can embrace. Democratic and Republican 
Senators alike have rightly supported and voted for this bill in the 
past. It is in this same bipartisan spirit that I urge all Members to 
support this bipartisan FOIA reform bill.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
placed in the Record, as follows:

                                 S. 612

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,


       This Act may be cited as the ``OPEN FOIA Act of 2009''.


       Section 552(b) of title 5, United States Code, is amended 
     by striking paragraph (3) and inserting the following:
       ``(3) specifically exempted from disclosure by statute 
     (other than section 552b of this title), if that statute--

[[Page S3176]]

       ``(A)(i) requires that the matters be withheld from the 
     public in such a manner as to leave no discretion on the 
     issue; or
       ``(ii) establishes particular criteria for withholding or 
     refers to particular types of matters to be withheld; and
       ``(B) if enacted after the date of enactment of the OPEN 
     FOIA Act of 2009, specifically cites to this paragraph.''.