[Congressional Record (Bound Edition), Volume 161 (2015), Part 4]
[Senate]
[Pages 4662-4664]
[From the U.S. Government Publishing Office, www.gpo.gov]




               SUNSHINE WEEK AND GOVERNMENT TRANSPARENCY

  Mr. GRASSLEY. Mr. President, last week marked the 10th anniversary of 
Sunshine Week, an initiative that has become a nationwide effort to 
promote openness and transparency in government. As Justice Brandeis 
wrote in 1913, ``sunlight is said to be the best of disinfectants.'' 
That is what Sunshine Week is all about--shining a bright light to 
provide accountability and ensuring the public's right to know what its 
government is doing.
  James Madison wrote in the Federalist No. 51, that ``if men were 
angels, no government would be necessary.'' This passage has been 
quoted and used time and again for different purposes--sometimes 
correctly, other times incorrectly. Nevertheless, it is important to 
keep in mind its context. Of course men aren't angels. Rather, we are 
all ambitious, and ``ambition must be made to counteract ambition.'' 
Thus, Madison described the Framers' challenge of forming a government 
administered by man as how to ``enable the government to control the 
governed; and . . . oblige it to control itself.''
  Madison went on to explain the need for the government structure we 
all know and live under now with proper checks and balances. Because of 
this structure, which is the best in the world, we celebrate Sunshine 
Week and continue to ensure the public can hold its government 
accountable.
  There is perhaps no better tool that Americans have to help ensure 
that open government and transparency prevail than the Freedom of 
Information Act. Enacted almost five decades ago, FOIA gives the public 
the right to government information, opening wide the curtains on the 
public's business and helping to ensure that government officials 
remain accountable.
  Unfortunately, as Madison explained so long ago, when ambition seeks 
to counteract ambition there are challenges to allowing sunlight to 
disinfect the ``culture of obfuscation'' that permeates certain corners 
of the Federal Government. When this happens, FOIA's effectiveness is 
undermined, and the public becomes even more skeptical of government. 
This sort of government behavior and secrecy knows no partisan 
boundaries. Both Democrat and Republican administrations have failed to 
provide the level of transparency that Federal laws require and which 
the American public so rightly deserves. But efforts to change the 
government's attitude toward openness and transparency should know no 
such partisan boundaries either.
  Currently, there is bipartisan work underway in both the Senate and 
House to strengthen the Freedom of Information Act. These reforms are 
aimed at improving citizens' ability to access

[[Page 4663]]

government information. The Senate Judiciary Committee has passed the 
FOIA Improvement Act of 2015, a bill I have cosponsored, and I am 
hopeful it will pass the Senate very soon. The FOIA Improvement Act 
would codify a ``presumption of openness'' standard, which will help to 
ensure that agencies proactively disclose more information to the 
public. The bill also makes it easier for the public to request 
documents from the government, while bringing about meaningful 
improvements to the FOIA process.
  Improvements in technology--and even improvements to our laws--will 
only go so far, however. Those who are entrusted with conducting the 
people's business and who serve as stewards of hard-earned taxpayer 
dollars, should operate under an instinct of openness rather than 
reflexive secrecy.
  Anyone who has watched the news recently could tell you that this 
year's Sunshine Week couldn't have fallen at a more appropriate--yet 
very concerning--time for our Nation. Even within the past few weeks, 
Americans have learned of more actions and inactions at the Federal 
level that helped keep the shutters closed on the public's access to 
government business.
  It is impossible to discuss the current state of government 
transparency without acknowledging former Secretary of State Hillary 
Clinton's use of a personal email account located on a private server 
in her home to conduct official State Department business.
  Last week, an article in Politico by Dan Metcalfe--who served more 
than 25 years as the Director of the Department of Justice's Office of 
Information and Privacy--called Secretary Clinton's argument that she 
complied with Federal recordkeeping laws ``laughable.'' Mr. Metcalfe 
says that ``in this case, which is truly unprecedented, no matter what 
Secretary Clinton would have one believe, she managed successfully to 
insulate her official emails, categorically, from the FOIA, both during 
her tenure at State and long after her departure from it--perhaps 
forever.'' At minimum, he says, ``it was a blatant circumvention of the 
FOIA by someone who unquestionably knows better.''
  In an attempt to appease the increasing demand for answers, Secretary 
Clinton said she used a personal email account to conduct official 
government business simply for reasons of ``convenience.'' While that 
may be so, I fear it is indicative of a broader fundamental disconnect 
between the letter and spirit of our Nation's transparency laws and the 
actions and attitudes of its officials.
  Let's be clear. Transparency shouldn't be a question of convenience. 
And the public's right to know shouldn't be curtailed simply because 
the release of certain information might be rather inconvenient for an 
agency, its leadership or an administration.
  Conducting government business on private email undermines public 
trust and is detrimental to good government. That is why I have 
reiterated a request I made to the State Department in 2013 for records 
and communications relating to the agency's questionable use of the 
``special government employee'' designation for a top aide to Secretary 
Clinton. This designation may have facilitated even more government 
business being conducted over private email, and we need to know 
exactly how these practices may be undermining FOIA.
  I have also worked to shine light on the current Labor Secretary's 
use of private email to conduct official business while serving at the 
Justice Department, and on allegations of the improper use of 
unofficial email addresses at the Treasury Department. In our 
increasingly digital world, we must remain vigilant in ensuring that 
government officials are conducting business through the appropriate 
channels.
  President Obama gave me high hopes at the start of his administration 
for a ``new era of open Government''--one where transparency is the 
rule, as opposed to the exception. On his first day in office, the 
President issued a memorandum to his administration, proclaiming that 
``the Freedom of Information Act should be administered with a clear 
presumption: In the face of doubt, openness prevails.'' He has even 
proclaimed that his is ``the most transparent administration in 
history.''
  Yet, time and again, we see examples of this administration operating 
under a ``do as I say, not as I do'' approach to transparency. Last 
week, administration officials proclaimed in USA TODAY that 
``increasingly, government agencies are operating with a `default to 
open' approach.'' They added that ``the administration also continues 
to make important strides in improving the Freedom of Information Act 
process.''
  The very next day was National Freedom of Information Day. How did 
the Obama administration celebrate its commitment to transparency? It 
announced its intention to remove a Federal regulation from the books 
that for 30 years has subjected the White House Office of 
Administration to FOIA requests. And just for good measure, the 
administration said that this official change in policy will not be 
subject to public comment.
  But this is by no means the first time the administration has shirked 
its commitment to transparency. From negotiating new regulations behind 
closed doors, to arguing an illogically narrow interpretation of FOIA 
before the DC Circuit--an interpretation the court said would have left 
FOIA requesters in limbo for months or even years--the Obama 
administration seems determined to say one thing while doing another. 
Clearly, there is room for improvement.
  But thankfully, when the government refuses to let the sunlight in, 
courageous citizens have stepped up to throw open the shutters. Each 
year, Sunshine Week provides an excellent opportunity to highlight the 
bravery and contribution of whistleblowers--private citizens and 
government employees who come forward to expose wrongdoing.
  Whistleblowers are a critical component of ensuring that our 
government remains accountable to the people that it serves. For years, 
I have worked with fellow lawmakers to ensure that whistleblowers have 
the kind of protections they need to be able to shine a light on waste, 
fraud, and abuse--without fear of retribution. Part of this effort has 
been through rigorous congressional oversight of agency compliance with 
laws like the Whistleblower Protection Act.
  This also involves rooting out areas for improvement. Earlier this 
month, the Senate Judiciary Committee held an oversight hearing to 
examine the urgent need for increased whistleblower protections at the 
FBI, where--unlike every other Federal agency--employees are not 
protected from retaliation for uncovering and reporting wrongdoings to 
their direct supervisors.
  People who are courageous enough to open wide the curtains on waste, 
fraud, and abuse should not have to fear for their livelihood; they 
should be honored for exposing the truth. To help advance this effort, 
I--along with a bipartisan group of Senators--recently launched the 
Whistleblower Protection Caucus. The caucus will serve as a resource 
for the latest information on whistleblower developments and will 
foster bipartisan discussion on the treatment of whistleblowers.
  Agency inspectors general, likewise, play a crucial role in bringing 
information about government actions--or inactions--out into the public 
light. It is important that their jobs not be undermined by the very 
agencies within which they operate. I am continually frustrated by the 
stories I hear of an agency stonewalling an inspector general's attempt 
to uncover the truth. In August 2014, 47 inspectors general from across 
the Federal government wrote to Congress about agency refusals to 
provide access to documents and information critical to their 
investigative efforts.
  I am particularly troubled by recent reports from the Justice 
Department's Office of the Inspector General that the FBI is failing to 
provide it with timely access to records. Not only is the FBI dragging 
its feet in turning over key documents, it is erecting barriers to 
access that are in direct contradiction with Federal law.

[[Page 4664]]

  If agencies are willing to go to such lengths to prevent disclosure, 
we have all the more reason to recognize and support the efforts of 
those who--often at great risk--seek to peel back the curtains.
  Sunshine Week continues to be a reflection of the tireless efforts of 
whistleblowers, government watchdogs, investigative journalists, and 
average Americans from across the country who are steadfast in their 
pursuit of a more transparent and accountable government. They are 
doing their part. We need to do ours. Let's build upon this 10th 
anniversary of Sunshine Week to engage in the discussions and work 
together toward the solutions that will truly usher in a new era of 
openness.

                          ____________________