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‘FOI and the Consent of the Governed’
Text of speech at National FOI Day conference, March 16, 2005

By John Cornyn
Member, U.S. Senate

Sen. John Cornyn, R-Texas, at National FOI Day conference.

Thank you, Paul (McMasters), for that kind introduction, and for all the great work you do with the Freedom Forum.

I also want to extend my thanks to those of you with the First Amendment Center. Our Founders believed that the freedom of the press was important enough to put it in the First Amendment to our Constitution. And I would argue that, despite what some may think, the freedom of the press is the primary freedom contained within that amendment.

You see, when the Founders wrote about “freedom of speech,” they were referring primarily to members of Parliament in Britain who were jailed for speaking out against the crown. It isn’t surprising that our Founders would long for such defenses for themselves, to speak out their opinions in the future halls of Congress.

Yet when the Founders wrote about “freedom … of the press,” they weren’t referring to their political, social, or economic peers. They weren’t endorsing professional ranks, the way we think of journalists today. They were referring to the riffraff in the streets, the pamphleteers and the common citizens, who deserved to have their freedom, too.

So I’m honored to join you all this morning, and to have the opportunity to talk to you about an issue that’s closely tied to the age-old philosophy of freedom that motivated our Founders. It is a challenge that is near and dear to my heart and yours: restoring our nation’s commitment to the fundamental principle of open government.

Open government is one of the most basic requirements of any healthy democracy. It allows for taxpayers to see where their money is going; it permits the honest exchange of information that ensures government accountability; and it upholds the ideal that no just government rules without the consent of the governed.

As is so often the case, Abraham Lincoln said it best: “No man is good enough to govern another without that person’s consent.”

But I believe that we have to recognize that achieving the true consent of the governed requires something more than just holding elections. What America needs is informed consent. And informed consent is impossible without both a free, responsible press, and an open and accessible government.

We are really just talking about human nature here. It is only natural that elected officials and government leaders want recognition for their successes, but not their failures. That’s an understandable motivation. But as a healthy democracy, we need to know the good, the bad, and the ugly.

Of course, the news media is the main way we get information about government. The media pushes government entities, bureaucrats and agencies to release information that the people have a right to know, exposing waste, fraud and abuse. Yet over the past few decades, while technology has expanded and the media has fundamentally changed, our information policies have lagged behind.

It has been nearly a decade since Congress has approved major reforms to the Freedom of Information Act. The Senate Judiciary Committee has not convened an oversight hearing to examine FOIA compliance issues since 1992. And in that time, I believe the growth of technology, the Internet, and the expansion of blogs have created a real desire among the media and the American people to achieve more direct, efficient, and open access to government information.

That’s why I recently introduced the OPEN Government Act of 2005 along with Senator Pat Leahy. This legislation is a bipartisan effort to improve and update our information laws – particularly FOIA – in order to respond to the concerns of watchdog groups, citizen activists, the news media, and the realities of our information-driven world. And in a hearing I chaired yesterday, we heard from a bipartisan panel of experts from across the political spectrum on both the need for reform, and effective examples of strong FOIA laws — such as the one in Texas.

The OPEN Government Act contains over a dozen substantive provisions, designed to achieve the following four objectives:

(1) Strengthen FOIA and close loopholes.
(2) Help FOIA requestors obtain timely responses to their requests.
(3) Ensure that agencies have strong incentives to act on FOIA requests in a timely fashion.
(4) Provide FOIA officials with all of the tools they need to ensure that our government remains open and accessible.

As a whole, the OPEN Government Act reiterates the principle that our government is based not on the need to know, but the fundamental right to know. It has received broad support, across the ideological spectrum, and it will significantly expand the accessibility, accountability, and openness of the federal government.

One of the questions I am often asked concerns the importance of balancing national-security concerns and openness in government in a time of war. We all recognize that there is an inherent risk in having an open government, that the broadcast of information can literally risk the lives of American troops in the battlefield.

I’m reminded of a comedy sketch that ran on “Saturday Night Live” during the Gulf War, when a poor U.S. military spokesman was pestered with questions from the press. Questions included: “Where are we most vulnerable to attack?” “What would be the most damaging information for the Iraqis to know?” and from a man claiming to be from the Baghdad Times: “Where exactly are your tanks, and can I go and look at them?”

In all seriousness, we must recognize that America's security should never take a back seat. But nor should any unjustified invocation of national security be used as a barrier that keeps taxpayers from knowing how their money is spent.

There is a broad consensus across the political spectrum that we currently over-classify government documents – that too many documents and (too much) information is placed beyond the public view without any real justification. I believe we need a system of classification that strikes the right balance between the need to classify documents in the interest of our national security and our national values of open government.

Our default position of the U.S. Government must be one of openness. If records can be open, they should be open. If there is a good reason to keep something closed, it is the government that should bear the burden, not the other way around.

So Senator Leahy and I will continue to proceed with the OPEN Government Act. We also have introduced another bill as of last week: the Faster FOIA Act, which supplements our other efforts by establishing an advisory Commission on FOIA Processing Delays. The commission will report to Congress and the president, recommending steps that will reduce delays in the administration of FOIA.

Open government is fundamentally an American issue, not a Republican or Democrat issue. It is literally necessary to preserve our way of life as a self-governing people. By reforming our information policies to guarantee true access by all citizens to government records, we will revitalize the informed consent that keeps America free.

I want to thank you for your continued support. I want to thank you for inviting me here today, and I’m happy to take your questions.


Openness must govern government, Sen. Cornyn says

By Eugenia Harris Democracy requires 'informed consent' afforded by open government, Texas Republican tells conference. 03.17.05

Senate panel approves 'Faster FOIA' bill
Unanimous vote sends measure sponsored by John Cornyn, R-Texas, and Patrick Leahy, D-Vt., to full chamber. 03.17.05

Cornyn expects fight on FOIA reforms
Senator tells Texas press group that bill to put teeth in 1966 federal sunshine law could face uphill battle in Congress. 03.31.05

The public's right to know is under attack
By Sen. Patrick J. Leahy Erosion of Freedom of Information Act weakens vital protections for American citizens, Vermont Democrat writes. 03.15.05

National FOI Day

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