Leahy: The Trump administration's attack on the people's right to know
By Patrick Leahy
Every year, during Sunshine Week, we recommit ourselves to an essential premise of our democracy: Our government must be an open government. A government that hides from the people can never be a government of, by, and for the people. Sunshine Week is a time to reflect on this principle, and to challenge ourselves to make our democracy ever more transparent and accountable to the American people.
This principle was instilled in me at a very early age. My parents were independent printers and newspaper publishers in Vermont, making their livelihood as proud members of the free press. The vital importance of the First Amendment to our Republic is deeply ingrained in me and in my family. But freedom of the press can guarantee little without freedom of information. Without meaningful access to information, the press and the public will struggle to serve as a check against the abuses and excesses of those in power. I'm proud to point out that Vermont's press and Vermont's lawmakers revisit these issues on a regular basis.
It is with this mindset that I arrived to the United States Senate in 1974, right when the Freedom of Information Act was making major headlines. Responding to a constitutional crisis provoked by secrecy and misdeeds within the Nixon administration, Congress overwhelmingly passed a series of sweeping amendments to FOIA, giving teeth to the law. As much as any law on the books, FOIA became a guardian of our democracy.
For the 20 years I served as the top Democrat on the Senate Judiciary Committee — ending just last year — I took my role as the Senate's shepherd of FOIA seriously. I dedicated myself to defending and strengthening the law over the years. Working alongside colleagues on both sides of the aisle, I was able to pass a number of amendments to FOIA. These amendments sought to mitigate abuses of the law and ensure that requestors like yourselves are getting information — and not just getting stonewalled.
Most recently, I was proud to join Senators Grassley and Cornyn in co-authoring the FOIA Improvement Act of 2016. This legislation, signed into law by President Obama near the 50th anniversary of FOIA, ushered in the most significant reforms to the law in decades. It brought FOIA into the 21st Century and codified the "presumption of openness." Now, every Administration must operate under the presumption that transparency, not secrecy, is the default setting of our government.
But as you here in this room know better than most, a law is little more than words on paper if it is not enforced. FOIA — under both Republican and Democratic administrations — sadly has not lived up to its potential. Backlogs are too high. Exemptions from disclosure can be abused. And requestors are forced to resort to costly litigation to obtain basic information that should already be in the public domain.
While several administrations have fallen short when it comes to transparency, I fear our current one presents a unique challenge. Unlike the Obama administration, President Trump's Justice Department is denying FOIA requests for information about its investigations into police shootings of civilians. Immigration and Customs Enforcement has stopped disclosing important information about its enforcement policies, and has removed documents from its online FOIA reading room. Given serious concerns that this administration marginalizes minority and immigrant communities, public access to such information is more critical than ever.
Beyond FOIA, the Trump administration has shrouded its workings in a cloak of secrecy. While President Obama voluntarily disclosed the names of those visiting the White House, the Trump administration has refused to follow this policy. Both the Bush and Obama administrations provided information about their cabinet secretaries' daily schedules. The Trump administration provides virtually none, leaving us to speculate which lobbyists and influence peddlers have the ears of senior Trump officials.
Perhaps most brazen is this administration's refusal to answer basic requests for information from Congress itself. The Trump administration's Office of Legal Counsel released a memo claiming that "individual members of Congress" who are not Chairmen of Committees "do not have the authority to conduct oversight." This absurd claim was blasted by the current Judiciary Committee Chairman, Chuck Grassley, who correctly reminded President Trump that ignoring oversight requests from Congress "doesn't drain the swamp. . .it floods the swamp."
Yet even in this challenging environment I believe progress is possible. I recently fought to include a provision in the Senate Legislative Branch Appropriations bill that would make CRS reports, or Congressional Research Service reports, public. The American people deserve to have access to the reports and analyses that Congress uses to make its decisions. I am fighting hard to include this language in our final omnibus bill in the weeks ahead.
Despite the hurdles in our path toward a truly open government, I remain optimistic. My optimism is in no small part a result of all of you — the army of journalists, lawyers, and advocates who toil every day to keep our government transparent and accountable. Your dedication to this cause is inspiring, and it is crucial. You can always count on me being in your corner. So let's get back to work. Plenty of corners within our government still operate in the shadows. It's time we introduce those corners to some sunshine.
TALK TO US
If you'd like to leave a comment (or a tip or a question) about this story with the editors, please email us. We also welcome letters to the editor for publication; you can do that by filling out our letters form and submitting it to the newsroom.