[Congressional Record Volume 162, Number 41 (Tuesday, March 15, 2016)]
[Senate]
[Pages S1494-S1496]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      FOIA IMPROVEMENT ACT OF 2015

  Mr. GRASSLEY. Mr. President, last week, when the Senate passed the 
Comprehensive Addiction and Recovery Act, I spoke on this floor about 
the good work that is getting done in the Senate since Republicans took 
over. Time and again, we have seen both sides of the aisle come 
together to find practical solutions to real problems facing the 
American people.
  That is the way the Senate is supposed to work, and we need to keep 
that momentum as we move forward to tackle other critical issues.
  As chairman of the Judiciary Committee, I continue to be proud of the 
role we have played in getting work done in a bipartisan manner.
  Today, on the floor of the Senate, we are doing that once again. We 
are passing another Judiciary Committee bill that carries strong, 
bipartisan support. We are passing another Judiciary Committee bill 
that solves real issues and is supported by folks on all ends of the 
political spectrum.
  Don't get me wrong. Finding agreement on both sides of the aisle is 
no easy task. Even the most well-intentioned efforts can get bogged in 
the details.
  But the fact that we are here today is a testament to good-faith 
negotiations and a commitment to make government work for the American 
people. And it is another indication of what this institution can be 
and what it was meant to be.
  The FOIA Improvement Act makes much-needed improvements to the 
Freedom of Information Act, and its passage marks a critically 
important step in the right direction toward fulfilling FOIA's promise 
of open government.
  I am proud to be an original co-sponsor of the FOIA Improvement Act, 
and I want to thank Senator Cornyn and the ranking member of the 
Judiciary Committee, Senator Leahy, for their tireless, bipartisan work 
to advance this bill through the Senate.
  I am especially proud that the bill's passage occurs during this 
year's Sunshine Week, an annual nationwide initiative highlighting the 
importance of openness and transparency in government.
  Every year, Sunshine Week falls around the birthday of James Madison, 
the father of our Constitution. This isn't by mistake.
  Madison's focus on ensuring that government answers to the people is 
embodied in the spirit of FOIA, so passing the FOIA Improvement Act 
this week is a fitting tribute to his commitment to accountable 
government and the protection of individual liberty. And it is an 
opportunity for us all to recommit ourselves to these same higher 
principles.
  This year marks the 50th anniversary of FOIA's enactment. For over 
five decades, FOIA has worked to help folks stay in the know about what 
their government is up to. The Supreme Court said it best when it 
declared: ``The basic purpose of FOIA is to ensure an informed 
citizenry, vital to the functioning of a democratic society, needed to 
check against corruption and to hold the governors accountable to the 
governed.''
  To put it simply, FOIA was created to ensure government transparency, 
and transparency yields accountability.
  After all, a government that operates in the dark, without fear of 
exposure or scrutiny, is one that enables misdeeds by those who govern 
and fosters distrust among the governed. By peeling back the curtains 
and allowing the sunlight to shine in, however, FOIA helps fight back 
against waste, fraud, and abuse of the taxpayer's dollar.
  No doubt, FOIA has successfully brought to light numerous stories of 
government's shortcomings. Through FOIA, folks have learned about 
public health and safety concerns, mistreatment of our Nation's 
veterans, and countless other matters that without FOIA would not have 
come to light.
  But despite its successes, a continued culture of government secrecy 
has served to undermine FOIA's fundamental promise.
  For example, we have seen dramatic increases in the number of 
backlogged FOIA requests. Folks are waiting longer than ever to get a 
response from agencies. Sometimes, they simply hear nothing back at 
all. And we have seen a record-setting number of FOIA lawsuits filed to 
challenge an agency's refusal to disclose information.
  More and more, agencies are simply finding ways to avoid their duties 
under FOIA altogether. They are failing to proactively disclose 
information, and they are abusing exemptions to withhold information 
that should be released to the public.
  Problems with FOIA have persisted under both Republican and Democrat 
administrations, but under President Obama, things have only worsened, 
and his commitment to a ``new era of openness'' has proven illusory at 
best.
  In January, the Des Moines Register published a scathing editorial, 
outlining the breakdowns in the FOIA system and calling on Congress to 
tackle the issue head-on.
  The editorial described: ``In the Obama administration, federal 
agencies that supposedly work for the people have repeatedly shown 
themselves to be flat-out unwilling to comply with the most basic 
requirements of the Freedom of Information Act.''
  It continued: ``At some federal agencies, FOIA requests are simply 
ignored, despite statutory deadlines for responses. Requesters are 
often forced to wait months or years for a response, only to be denied 
access and be told they have just 14 days to file an appeal.''
  According to the editorial: ``Other administrations have engaged in 
these same practices, but Obama's penchant for secrecy is almost 
unparalleled in recent history.''
  These are serious allegations, and no doubt, there are serious 
problems needing fixed.
  So reforms are necessary to address the breakdowns in the FOIA 
system, to tackle an immense and growing backlog of requests, to 
modernize the way folks engage in the FOIA process, and to ultimately 
help change the culture in government toward openness and transparency.
  What we have accomplished with this bill--in a bipartisan manner--is 
a strong step in the right direction.
  First, the bill makes much-needed improvements to one of the most 
overused FOIA exemptions. It places a 25-year sunset on the 
government's ability to withhold certain documents that demonstrate how 
the government reaches decisions. Currently, many of these documents 
can be withheld from the public forever, but this bill helps bring them 
into the sunlight, providing an important and historical perspective on 
how our government works.
  Second, the bill increases proactive disclosure of information. It 
requires agencies to make publicly available any documents that have 
been requested and released three or more times under FOIA. This will 
go a long way toward easing the backlog of requests.
  Third, the bill gives more independence to the Office of Government 
Information Services. OGIS, as it is known, acts as the public's FOIA 
ombudsman and helps Congress better understand where breakdowns in the 
FOIA system are occurring. OGIS serves as a key resource for the public 
and Congress, and this bill strengthens OGIS's ability to carry out its 
vital role.
  Fourth, through improved technology, the bill makes it easier for 
folks to submit FOIA requests to the government. It requires the 
development of a single, consolidated online portal through which folks 
can file a request. But let me be clear: it is not a one-size-fits-all 
approach. Agencies will still be able to rely on request-processing 
systems they have already built into their operations.

[[Page S1495]]

  Most importantly, the bill codifies a presumption of openness for 
agencies to follow when they respond to FOIA requests. Instead of knee-
jerk secrecy, the presumption of openness tells agencies to make 
openness and transparency their default setting.
  These are all timely and important reforms to the FOIA process, and 
they will help ensure a more informed citizenry and a more accountable 
government.
  So I am pleased to see this bill move through the Senate. President 
Obama has an opportunity to join with Congress in securing some of the 
most substantive and necessary improvements to FOIA since its 
enactment.
  On July 4 of this year, FOIA turns 50. Let's continue this strong, 
bipartisan effort to send a bill to the President's desk before then. 
Let's work together to help fulfill FOIA's promise.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I thank the senior Senator from Iowa for 
his remarks. As he knows, I have worked for years on improving FOIA 
along with my friend, the senior Senator from Texas. We are celebrating 
Sunshine Week, a time to pay tribute to one of our Nation's most basic 
values--the public's right to know. Our very democracy is built on the 
idea that our government should not operate in secret. James Madison, a 
staunch defender of open government and whose birthday we celebrate 
each year during Sunshine Week, wisely noted that for our democracy to 
succeed, people ``must arm themselves with the power knowledge gives.'' 
It is only through transparency and access to information that the 
American people can arm themselves with the information they need to 
hold our government accountable.
  We are also celebrating the 50th anniversary of the enactment of the 
Freedom of Information Act, FOIA, our Nation's premier transparency 
law. I was actually at the National Archives yesterday, and I looked at 
the actual bill signed into law in 1966 by then-President Johnson, Vice 
President Hubert Humphrey, and Speaker John McCormack, all who were 
here long before I was. I was thinking that, 50 years ago, the Freedom 
of Information Act became the foundation on which all our sunshine and 
transparency policies rest, so I can think of no better way to 
celebrate both Sunshine Week and the 50th Anniversary of FOIA than by 
passing the FOIA Improvement Act.
  This bipartisan bill, which I coauthored with Senator Cornyn, 
codifies the principle that President Obama laid out in his 2009 
executive order. He asked all Federal agencies to adopt a ``presumption 
of openness'' when considering the release of government information 
under FOIA. That follows the spirit of FOIA put into place by President 
Clinton, repealed by President Bush, and reinstated as one of President 
Obama's first acts in office, but I think all of us felt we should put 
the force of law behind the presumption of openness so that the next 
President, whomever he or she might be, cannot change that without 
going back to Congress. Congress must establish a transparency standard 
that will remain for future administrations to follow--and that is what 
our bill does. We should not leave it to the next President to decide 
how open the government should be. We have to hold all Presidents and 
their administrations accountable to the highest standard. I do not 
think my friend, the senior Senator from Texas, will object if I 
mention that in our discussions we have both said words to the effect 
that we need FOIA, whether it is a Democratic or Republican 
administration. I do not care who controls the administration. When 
they do things they think are great, they will release a sheath of 
press releases about them. However, it is FOIA that lets us know when 
they are not doing things so well. The government works better if every 
administration is held to the same standard.
  The FOIA Improvement Act also provides the Office of Government 
Information Services, OGIS, with additional independence and authority 
to carry out its work. The Office of Government and Information 
Services, created by the Leahy-Cornyn OPEN Government Act in 2007, 
serves as the FOIA ombudsman to the public and helps mediate disputes 
between FOIA requesters and agencies. Our bill will provide OGIS with 
new tools to help carry out its mission and ensure that OGIS can 
communicate freely with Congress so we can better evaluate and improve 
FOIA going forward. The FOIA Improvement Act will also make FOIA easier 
to use by establishing an online portal through which the American 
people can submit FOIA requests, and it will ensure more information is 
available to the public by requiring that frequently requested records 
be made available online.
  Last Congress, the FOIA Improvement Act, which Senator Cornyn and I 
wrote, passed the Senate unanimously. The House failed to take it up. 
So as the new Congress came in, to show we are bipartisan with a change 
from Democratic leadership to Republican leadership, Senator Cornyn and 
I moved quickly to reintroduce our legislation in the new Congress. The 
Senate Judiciary Committee unanimously approved our bill in February 
2015. Sometimes it is hard for the Senate Judiciary Committee to 
unanimously agree that the sun rises in the east, but on this issue, we 
came together. Our bill has been awaiting Senate action for over a 
year. I urge its swift passage today. I want the House to take it up. I 
want the President to sign it into law. I am proud to stand here with 
my good friend, the senior Senator from Texas.
  The PRESIDING OFFICER (Ms. Ayotte). The Senator from Texas.
  Mr. CORNYN. Madam President, I want to thank my colleague, the 
Senator from Vermont, for being together with me on what some people 
would regard as the Senate's odd couple--people with very different 
views on a lot of different things but who try to work together on 
legislation such as this, freedom of information reform legislation, 
but I can think of others that we worked on as well, such as patent 
reform and criminal justice reform.
  I think most people are a little bit surprised when they see us 
fighting like cats and dogs on various topics, which we will--and those 
fights are important when they are based on principle--I think they are 
a little bit surprised when they see us then come together and try to 
find common cause, common ground on things such as this, but this is 
the sort of thing that makes the Senate work. This is the sort of thing 
that the American people deserve, when Republicans and Democrats, 
people all along the ideological spectrum, work together to find common 
ground.
  I couldn't agree with the Senator more about, really, a statement of 
human nature. It is only human nature to try to hide your failures and 
to trumpet your successes. It is nothing more, nothing less than that. 
But what the Freedom of Information Act is premised on is the public's 
right to know what their government is doing on their behalf.
  I know some people might think, well, for somebody who is a 
conservative, this is a little bit of an odd position. Actually, I 
think it is a natural fit. If you are a conservative like me, you think 
that the government doesn't have the answer to all the challenges that 
face our country, that sometimes, as Justice Brandeis said, sunlight is 
the best disinfectant.
  Indeed, I know something else about human nature: that people act 
differently when they know others are watching than they do when they 
think they are in private and no one can see what they are doing. It is 
just human nature.
  So I have worked together with Mr. Leahy, the Senator from Vermont, 
repeatedly to try to advance reforms of our freedom of information 
laws, and I am glad to say that today we will have another milestone in 
that very productive, bipartisan relationship on such an important 
topic. This is Sunshine Week, a week created to highlight the need for 
more transparent and open government.
  Let me mention a couple of things this bill does. It will, of course, 
as we said, strengthen the existing Freedom of Information Act by 
creating a presumption of openness. It shouldn't be incumbent on an 
American citizen asking for information from their own government--
information generated and maintained at taxpayer expense--they 
shouldn't have to come in and prove something to be able to get access 
to something that is theirs in the

[[Page S1496]]

first place. Now, there may be good reason--classified information 
necessary to fight our Nation's adversaries, maybe personally private 
information that is really not the business of government, but if it 
is, in fact, government information bought for and maintained by the 
taxpayer, then there ought to be a presumption of openness. This 
legislation will, in other words, build on what our Founding Fathers 
recognized hundreds of years ago: that a truly democratic system 
depends on an informed citizenry to hold their leaders accountable. And 
in a form of government that depends for its very legitimacy on the 
consent of the governed, the simple point is, if the public doesn't 
know what government is doing, how can they consent? So this is also 
about adding additional legitimacy to what government is doing on 
behalf of the American people.
  I just want to again thank the chairman of the Senate Judiciary 
Committee. We had a pretty productive couple of weeks with passage of 
the Comprehensive Addiction and Recovery Act, which the Presiding 
Officer was very involved in, and now passage of this legislation by, I 
hope, unanimous consent.


                        Presumption of Openness

  Mr. LEAHY. Madam President, Senator Cornyn and I have worked together 
to improve and protect the Freedom of Information Act, FOIA--our 
Nation's premiere transparency law--for many years and look forward to 
continuing this partnership.
  The bill we passed today codifies the principle that President Obama 
laid out in his 2009 Executive order in which he asked all Federal 
agencies to adopt a ``presumption of openness'' when considering the 
release of government information under FOIA. This policy embodies the 
very spirit of FOIA. By putting the force of law behind the presumption 
of openness, Congress can establish a transparency standard that will 
remain for generations to come. Importantly, codifying the presumption 
of openness will help reduce the perfunctory withholding of documents 
through the overuse of FOIA's exemptions. It requires agencies to 
consider whether the release of particular documents will cause any 
foreseeable harm to an interest the applicable exemption is meant to 
protect. If it will not, the documents should be released.
  Mr. CORNYN. I thank Senator Leahy for his remarks and for working 
together on this important bill. This bill is a good example of the 
bipartisan work the Senate can accomplish when we work together toward 
a common goal. I agree with Senator Leahy that the crux of our bill is 
to promote disclosure of government information and not to bolster new 
arguments in favor of withholding documents under FOIA's statutory 
exemptions.
  I want to clarify a key aspect of this legislation. The FOIA 
Improvement Act makes an important change to exemption (b)(5). 
Exemption (b)(5) permits agencies to withhold documents covered by 
litigation privileges, such as the attorney-client privilege, attorney 
work product, and the deliberative process privilege, from disclosure. 
Our bill amends exemption (b)(5) to impose a 25-year sunset for 
documents withheld under the deliberative process privilege. This 
should not be read to raise an inference that the deliberative process 
privilege is somehow heightened or strengthened as a basis for 
withholding before the 25-year sunset. This provision of the bill is 
simply meant to effectuate the release of documents withheld under the 
deliberative process privilege after 25 years when passage of time 
undoubtedly dulls the rationale for withholding information under this 
exemption.
  Mr. LEAHY. I thank Senator Cornyn for his comments, and I agree with 
his characterization of the intent behind the 25-year sunset and the 
deliberative process privilege. This new sunset should not form the 
basis for agencies to argue that the deliberative process privilege 
somehow has heightened protection before the 25-year sunset takes 
effect. Similarly, the deliberative process privilege sunset is not 
intended to create an inference that the other privileges--including 
attorney-client and attorney work product, just to name a few--are 
somehow heightened in strength or scope because they lack a statutory 
sunset or that we believe they should not be released after 25 years. 
Courts should not read the absence of a sunset for these other 
privileges as Congress's intent to strengthen or expand them in any 
way.
  Mr. CORNYN. I thank Senator Leahy for that clarification and agree 
with his remarks. If there is any doubt as to how to interpret the 
provisions of this bill, they should be interpreted to promote, not 
detract, from the central purpose of the bill which is to promote the 
disclosure of government information to the American people.
  Madam President, I ask unanimous consent that the Senate proceed to 
the immediate consideration of Calendar No. 17, S. 337.
  The PRESIDING OFFICER. The clerk will report the bill by title.
  The bill clerk read as follows:

       A bill (S. 337) to improve the Freedom of Information Act.

  There being no objection, the Senate proceeded to consider the bill.
  Mr. CORNYN. Madam President, I ask unanimous consent that the Cornyn 
substitute amendment be agreed to; that the bill, as amended, be read a 
third time and passed; and that the motion to reconsider be considered 
made and laid upon the table.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment (No. 3452) in the nature of a substitute was agreed to.
  (The amendment is printed in today's Record under ``Text of 
Amendments.'')
  The bill (S. 337), as amended, was ordered to be engrossed for a 
third reading, was read the third time, and passed.
  Mr. CORNYN. I thank the Presiding Officer.
  Again, let me express my gratitude to my partner in this longstanding 
effort. Since I have been in the Senate, Senator Leahy has worked 
tirelessly, together with me and my office and really the whole Senate, 
to try to advance the public's right to know by reforming and expanding 
our freedom of information laws.
  Thank you.
  Mr. LEAHY. Madam President, I thank the distinguished senior Senator 
from Texas. He has worked tirelessly on this, and I think we both agree 
that the best government is one where you know what they are doing.

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