‘A Democracy Hidden From the People is No Democracy At All’

The following is the keynote address given by Sen. Patrick Leahy (D-Vt.) on March 11 at the National Archives and Records Administration in honor of Sunshine Week. Sen. Leahy received NEFAC’s 2016 Stephen Hamblett First Amendment Award for his efforts to advance government transparency.

By Sen. Patrick Leahy

Sunshine Week is an opportunity for us to reflect upon the foundational principle that a democracy hidden from the people is no democracy at all.

Our government’s legitimacy is derived entirely from the consent of the governed. But how can the governed consent to that which is concealed from them? This week we recommit ourselves to the idea that the path toward a more perfect union requires us to lay bare and scrutinize our imperfections.

From the beginning of my tenure in the Senate, 45 years ago, transparency has been a guiding force. That is why for 20 years as the chairman or ranking member on the Senate Judiciary Committee, I worked to both protect and bolster the Freedom of Information Act. I am proud to have led bipartisan reforms to FOIA over the years, including, most recently, the FOIA Improvement Act of 2016, which codified the “presumption of openness.”

My dedication to an open government has not dwindled since I transitioned from being the top Democrat on the Judiciary Committee to the top Democrat on the Appropriations Committee. In the FY 2018 Omnibus Appropriations Bill, enacted in March of last year, I included a provision making Congressional Research Service reports available to the public. It was unacceptable that American taxpayers funded these reports – which often provide the research informing major legislation impacting their lives – only for well-moneyed lobbyists to enjoy through expensive subscriptions. Now these superb national resources are available to all Americans.

More recently, in the FY 2019 Appropriations Minibus, I authored provisions instructing both the Departments of Homeland Security and Justice to apply FOIA requirements to private contractors housing detainees and inmates. Rampant abuses at private detention facilities and prisons have largely remained hidden from public view because they have not been subject to federal transparency requirements. But these private contractors are engaged in fundamentally governmental operations, and they should not escape public scrutiny because of a blind spot in our laws. Our government should never operate in the shadows by proxy.

Despite these important gains, we’d be fooling ourselves by failing to acknowledge the challenges facing FOIA and transparency in the months and years ahead. According to a recent audit of government-wide FOIA requests, the average processing time at most agencies is hundreds of days longer than the 20-day response time established in law. There are a few pending FOIA requests that are breathtakingly decades old. And there are some agencies with tens of thousands of backlogged FOIA requests.

While many administrations have had less than stellar track records under FOIA, the Trump administration has demonstrated a particular aversion to transparency – and to the truth. Just last week, I joined a bipartisan group of Congress members – including my FOIA partner Senator John Cornyn, who spoke here earlier today – in condemning the Department of Interior’s recent proposed FOIA rule. Although Congress made it crystal clear that agencies shall not deny FOIA requests for reasons unrelated to the core interests protected by statutory exemptions, this proposed rule would allow the agency to do precisely that – providing a laundry list of bureaucratic justifications to deny or simply ignore requests.

In the last two years, we’ve seen numerous examples where regional agency offices were ready to provide responsive records to FOIA requestors, only to be overruled by political appointees in the agency’s D.C. headquarters. We’ve seen agencies absurdly denying requests for very specific reports or a narrow set of documents as being “overbroad.” And we’ve seen a proliferation of pro forma responses rejecting requests on grounds entirely unrelated to the underlying request. In one instance, a draft report was nonsensically withheld because the requestor did not provide a date of birth or a death certificate for the subject of the request. Such examples make a mockery of our nation’s premier transparency law.

The list of threats to transparency under the Trump administration goes on, and expands far beyond just FOIA itself. President Trump’s ongoing, opaque ties to his business organization make it impossible to know whether foreign governments and corporations are able to curry favor with him by spending money on his business. The Trump administration has also issued an unprecedented number of lobbyist waivers to its appointees in secret – preventing the public from knowing whether Trump agency officials are simply continuing their advocacy on behalf of special interests in their official capacities.

Most recently, there are serious concerns that the Justice Department will conceal much of the Special Counsel’s report from public view due to two separate, internal DOJ policies: the first that a president should not be indicted while in office and, the second, that unindicted individuals should not have their reputations sullied by the Department. But neither of those policies should serve to hide presidential misconduct, if the Special Counsel so finds. That’s why I’m a lead cosponsor of the bipartisan Special Counsel Transparency Act that would compel public disclosure of the report. And that’s why I will support any and all efforts to ensure the American people are not left in the dark about perhaps the most critical national security investigation of our time.

Although the task of transparency is an uphill climb, there are many reasons to be hopeful. The American people spoke resoundingly in November for more transparency and accountability in our government. Congress is now better suited to serve as a real check on the executive branch. Just know that your work is my work, and our work is the American people’s work. Together, let us recharge our spotlights and shine them into the darkness.

Patrick Leahy is a U.S. senator from Vermont and the recipient of NEFAC’s 2016 Stephen Hamblett First Amendment Award.

Above photo taken by Flickr user Eric B. Walker. It was cropped and used with permission under a CC 2.0 license.

NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.

Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Please make a donation here.

Major Supporters of NEFAC include the Hearst Connecticut Media Group, the Barr Foundation, The Providence Journal Charitable Legacy Fund, The Robertson Foundation, The Boston Globe, Boston University and WBUR-Boston.

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