Sunshine Week and Freedom of Information

This week is Sunshine Week, an annual nationwide celebration of the good that comes from peeling back the curtains on government. Sunshine Week coincides with the National Freedom of Information Day and President James Madison’s birthday, both of which occur on March 16.

James Madison understood the value of an informed citizenry as a necessary check against those in power. We shouldn’t forget his call for the people to “arm themselves with the power which knowledge gives.”

More recently in our Nation’s history, Justice Brandeis declared, “sunlight is said to be the best of disinfectants.” These sentiments hold true to this day. A government that operates in darkness–and a public that’s kept in the dark — sows the seeds of waste, fraud, and abuse.

In the face of secrecy and obstruction, the public has a vital weapon: the Freedom of Information Act (FOIA). Over fifty years ago, President Lyndon Johnson signed FOIA into law, establishing the public’s judicially enforceable right to government information. Before FOIA, the people had to justify their need for information to the government. But after FOIA, the government has to justify its refusal to release information to the public. FOIA’s enactment marked a crucial step toward a government more accountable to the people.

No doubt, FOIA manifests Congress’s recognition of the need to carefully balance the public’s right to know and the government’s interest in protecting certain information from disclosure. But practice and history demonstrates this balance has all too often been tilted away from transparency. Many in government have continued to find ways to undermine citizens’ right to know under FOIA. Transparency should be the norm, not the exception. Yet, when it comes to FOIA requests, we’ve continued to see a government culture of delay, deny, and defend. When this happens, FOIA’s effectiveness is undermined and the public becomes even more skeptical of its government.

We’ve seen this in one way or another under every administration — both Republican and Democratic — since FOIA’s enactment. But the trend toward secrecy and obstruction in recent years should alarm all of us.

According to a March 14th Associated Press report, “The Obama administration in its final year in office spent a record $36.2 million on legal costs defending its refusal to turn over federal records under [FOIA.]” In 2016, the Obama administration set records for “outright denial of access to files, refusing to quickly consider requests described as especially newsworthy, and forcing people to pay for records who had asked the government to waive search and copy fees.” To top it off, “The government acknowledged when challenged that it had been wrong to initially refuse to turn over all or parts of records in more than one-third of such cases, the highest rate in at least six years.”

We simply cannot continue down this path.

Fortunately, a truly bipartisan and bicameral effort last year resulted in the enactment of the FOIA Improvement Act of 2016. I was proud to be a co-sponsor of this important piece of legislation, and to have worked closely with my colleagues on the Judiciary Committee — as well as the open government community — in ensuring its passage. It achieves some of the most meaningful and necessary reforms to FOIA in history. And we’re already witnessing some of the positive impacts of these reforms.

For example, the National Security Archive, a non-profit open government advocate, fought for years to achieve the public release of certain historical documents about the Bay of Pigs invasion. But time and again, they were met with legal hurdles put up by the Central Intelligence Agency (CIA). This past October, however, the CIA released these historically significant documents. In doing so, the CIA’s Chief Historian stated that the agency is “releasing this draft volume today because recent 2016 changes in the [FOIA] requires us to release some drafts that are responsive to FOIA requests if they are more than 25 years old.”

This is excellent news. And it’s just one example of the good that can result from bipartisan work toward a common goal for the American people. I look forward to hearing many other such stories of important information finally being made publicly available under FOIA, thanks to these recent reforms. But we can’t just rest on our laurels. No matter which party is in control of Congress or the White House, continuing oversight of FOIA — and the faithful implementation of its amendments — is essential to ensure the law’s effectiveness as a tool for the public good.

As Chairman of the Judiciary Committee, I’m proud during this Sunshine Week to join Senators Feinstein, Cornyn, and Leahy in sending letters to the Trump administration to learn more about specific steps taken to carry out the FOIA Improvement Act of 2016, and efforts underway to improve the proactive disclosure of information. Compliance with both the letter and spirit of FOIA should always be a top priority of any administration, so I look forward to hearing back about progress made.

Before President Trump took office, I stood on the Senate floor and urged him to reverse the secrecy and obstruction that defined the Obama administration’s FOIA track record. Today, I reiterate that call. A new administration provides a new opportunity to get it right.

This Sunshine Week, let’s recommit to working together toward improving open government, fulfilling FOIA’s promise, and ensuring a more informed citizenry.