[Congressional Record: March 12, 2008 (Senate)]
[Page S2001]


      By Mr. LEAHY (for himself and Mr. Cornyn):

  S. 2746. 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, today, as we approach the national 
celebration of Sunshine Week 2008, I am pleased to join with Senator 
Cornyn to introduce the OPEN FOIA Act of 2008, a concise and 
straightforward bill to further strengthen the Freedom of Information 
Act, FOIA. This bill is the next step in the important work that 
Senator Cornyn and I have undertaken to reinvigorate and strengthen 
FOIA, and it follows the enactment late last year of the Leahy-Cornyn 
OPEN Government Act, a law which made the first major reforms to FOIA 
in more than a decade.
  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 in that bill. This 
commonsense bill mirrors bipartisan legislation that unanimously passed 
the Senate during the last Congress, S.1181. I hope that the Senate 
will once again promptly and unanimously pass this good-government 
  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 democracy. 
For more than 4 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.
  FOIA 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 
may be withheld from the public. Of course, neither I nor Senator 
Cornyn would quibble with the notion that some Government information 
is appropriately kept from public view. But 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 people'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. Of course, 
sometimes this does happen. But more and more often, legislative 
exemptions to FOIA are buried within a few lines of very complex and 
lengthy bills, which are never debated openly and publicly 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.
  Senator Cornyn and I both believe that Congress must be diligent in 
reviewing any new exemptions to FOIA, to prevent possible abuses and a 
situation where the exceptions to disclosure under FOIA swallow this 
important disclosure rule. The OPEN FOIA Act will ensure openness and 
clarity about how we treat one of our most important open Government 
laws. Our bill will also shine more light into the process of creating 
legislative exemptions to FOIA--which is the best antidote to exemption 
  Democratic and Republican Senators alike have rightly supported and 
voted for this bill in the past. As I have said many times before, open 
Government is not a Democratic issue, nor a Republican issue. It is an 
American value and a virtue that all Americans can embrace. I urge all 
Members to support this bipartisan good-government bill to strengthen 
the public's right to know.
  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 
printed in the Record, as follows:

                                S. 2746

       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 2008''.


       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--
       ``(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 2008, specifically cites to this paragraph.''.