[Congressional Record Volume 151, Number 86 (Friday, June 24, 2005)]
[Senate]
[Pages S7383-S7385]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                 FREEDOM OF INFORMATION ACT EXEMPTIONS

  Mr. ALEXANDER. I ask unanimous consent the Senate proceed to the 
immediate consideration of Calendar 126, S. 1181.
  The PRESIDING OFFICER. The clerk will report the bill by title.
  The legislative clerk read as follows:

       A bill (S. 1181) 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.

  There being no objection, the Senate proceeded to consider the bill.
  Mr. LEAHY. Mr President. Earlier this month, Senator Cornyn and I 
introduced a simple and straightforward bill to strengthen open 
Government and the Freedom of Information Act, or FOIA. It was the 
third commonsense proposal on Government openness we have offered to 
the Senate this year. 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 productive 
partnership in this Congress to support and strengthen FOIA. We 
introduced two bills earlier this year and held a hearing on our bill, 
S. 394, the Open Government Act, during Sunshine Week in March.
  The bill we pass today 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 8 of 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.
  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

[[Page S7384]]

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 separate 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. The American people deserve 
our ongoing diligence in limiting undue exemptions that only serve to 
clog the plumbing and limit the public's right to know.
  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 pass that single section as a new bill. I 
urge the House to take action quickly and the President to sign this 
bill into law.
  I want to thank the Senator from Texas for his personal dedication to 
these issues, and I thank all Senators for their support of this bill.
  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. 
Sec. 1547(a)--and the Federal Vacancies Reform Act--5 U.S.C. 
Sec. 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

[[Page S7385]]

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)

       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 
     encephalopathy.
       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 
     information.
       ``It is an easy way to slap a secrecy stamp on the 
     information,'' said Rick Blum, director of 
     openthegovernment.org, 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 
     paragraphs 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 
     spout, you just have to eat it.''
       But Daniel J. Metcalfe, co-director of the Justice 
     Department's Office of lnformation and Privacy, said the 
     exemption 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 bill provides the government with 
     the information it needs to protect the public in the event 
     of a disease outbreak, 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 
     necessary.
       ``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. 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. ALEXANDER. Mr. President, I ask unanimous consent the bill be 
read the third time and passed, the motion to reconsider be laid upon 
the table, and any statements relating to the bill be printed in the 
Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The bill (S. 1181) was read the third time and passed, as follows:

                                S. 1181

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

     SECTION 1. SPECIFIC CITATIONS IN EXEMPTIONS.

       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), provided that such 
     statute--
       ``(A) if enacted after July 1, 2005, specifically cites to 
     this section; and
       ``(B)(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;''.

  Mr. ALEXANDER. Are we in morning business?
  The PRESIDING OFFICER. The Senator is correct.
  Mr. ALEXANDER. I ask unanimous consent to speak for as much time as I 
may require on energy.
  The PRESIDING OFFICER. The Senator is recognized.

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