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Two things can always be said about the public's right to know: It is everlastingly important in an open, representative democracy, and it always faces threats from nibbling erosion.
Sunshine Week each year is a time to take stock of how we are doing in defending the right to know what our government is doing. The hearing I chaired last week in the Senate Judiciary Committee revealed a mixed picture.
The need for greater government transparency and openness has never been more apparent than in the past year. The disclosures by Edward Snowden about government surveillance have sparked a public debate that we should have had more than 10 years ago. It is true that Mr. Snowden's leaks may have damaged the nation's security in ways the public and even the National Security Agency (NSA) may never fully know. But I also believe – and some senior intelligence officials agree – that we could have avoided this scenario had the government simply been more forthcoming about its intelligence activities from the outset.
Over the last decade, I have proposed reforms to the NSA surveillance programs again and again and have fought for greater transparency and accountability. Likewise, I have pressed the executive branch to disclose publicly the legal opinions used to justify government surveillance and the targeted killing of Americans using drones, and I fully support efforts to declassify and make public the Senate's investigation into the CIA's post-9/11 torture program. But as the events of the last year demonstrate, we cannot simply rely on the government to volunteer this kind of information in a timely fashion and often the press plays a central role in preserving and promoting the public's right to know. That is also why I have insisted that all of the hearings I have held on these surveillance issues be open to the press and the public.
The cornerstone instrument of the public's right to know is the Freedom of Information Act, or FOIA. For almost a half century, FOIA has translated the American values of government openness and accountability into practice by guaranteeing the public's right to government information.
Five years after President Obama issued presidential directives on FOIA and open government, we have seen some progress. Backlogs of FOIA requests are declining. Online tools such as Data.gov, FOIA.gov, and the FOIA portal and the administration's new "FOIA IT Working Group" have modernized the way that citizens can find government information. We are moving in the right direction, but there are stubborn impediments to the FOIA process, and progress has come much too slowly.
A new study by the Center for Effective Government – which graded the responsiveness of the 15 federal agencies that process the most FOIA requests – found that almost half of these agencies failed to earn a passing grade. Another impediment to the FOIA process is the growing use of exemptions to withhold information from the public. According to a 2013 Secrecy Report prepared by OpenTheGovernment.org, federal agencies used FOIA Exemption 5 to withhold information from the public more than 79,000 times in 2012 – a 41 percent rise from the previous year.
This is a troubling trend, and we should all be concerned about the increasing use of FOIA exemptions to withhold wide swaths of government information – because it hinders Americans' right to know. That is why I have long supported adding a public interest balancing test to the FOIA statute. Before invoking a FOIA exemption, agencies should be required to consider the public interest in the disclosure of government information.
Seven years ago, Republican Senator John Cornyn and I worked together to establish the Office of Government Information Services (OGIS) to help mediate FOIA disputes and to make recommendations to Congress and to the president on how to improve the FOIA process. I am encouraged by the good work that OGIS is doing, but I worry this office does not have the sufficient independence, authority, and resources to fully carry out its work. The work of this office is crucial to keeping government open and accountable. I will continue to work to ensure that OGIS has the tools and resources that it needs to fulfill its mission.
The public's right to know is fundamental, yet the tools that make it a reality will always be fragile and susceptible to repeal and erosion. Sunshine Week is an annual reminder of our common responsibility as citizens to defend that right.
U.S. Senator Patrick Leahy (D-VT) chairs the Judiciary Committee and has authored several laws strengthening the Freedom of Information Act (FOIA). In 1996 he was inducted into the FOIA Hall of Fame and in 2005 received the inaugural Matthew Lyon Award from the Vermont Press Association "for his lifetime commitment to the First Amendment and the public's right to know the truth."