Viewpoint: Balancing Security and Open Government in the Cyber Age


By:  Sen. Patrick Leahy (D-Vt.)

The Freedom of Information Act (FOIA) has been a bulwark of our open society since it was signed into law by President Johnson 45 years ago. Today, amid debates in Congress about how best to improve the nation’s security in cyberspace, we must remember that while we have an obligation to protect the government’s most sensitive information, we also have an  equally compelling duty to safeguard the public’s “right to know” about threats to their health and safety.

Of course government secrecy has its place. There are real and intensifying threats to critical infrastructure and other sensitive government information. But governments will always be tempted to overuse the secrecy stamp. When that happens, secrecy can come at an unacceptable price, harming citizens’ interest in safety, health and a clean environment.

For more than four decades, FOIA has carefully balanced the federal government’s need to protect important and sensitive information with the right of every citizen to learn what their government is doing. When Congress first considered FOIA more than four decades ago, the House of Representatives noted that “it is vital to our way of life to reach a workable balance between the right of the public to know and the need of the government to keep information in confidence to the extent necessary without permitting indiscriminate secrecy.”

In the decade since the tragic events of 9/11, Congress has grappled with how to maintain this balance, as new threats and new technologies emerge. Today, when cyber threats can be transmitted over the Internet in an instant, maintaining the proper balance between security and openness for critical infrastructure information is more important than ever before.

We are often reminded that FOIA remains an indispensable tool for Americans to obtain information about threats to their health and safety. Through FOIA requests, citizens living on and near Camp Lejeune Marine Base in North Carolina have been able to learn more about contaminated well water which is believed to have sickened — and in some instances killed — service members, members of their families and other residents for decades. Thousands of miles away in Washington State, concerned Americans are using FOIA to learn more about the potential dangers to their communities posed by munitions stored on Naval Magazine Indian Island.

In January, a carefully balanced and narrow exemption to FOIA for Defense Department critical infrastructure information was signed into law as part of the annual National Defense Authorization Act (NDAA). A key part of that measure is a requirement that government officials affirmatively determine that withholding information from the public outweighs other interests — such as ensuring that citizens have access to health and safety information — before keeping critical infrastructure information secret. This law will help ensure that truly sensitive government information is protected, while allowing public access to important information about potential health and safety threats.

This year during Sunshine Week, the Senate Judiciary Committee will hold a hearing to examine how best to protect critical infrastructure information throughout our government, while at the same time safeguarding the public’s right to know. As Congress considers new exemptions to FOIA in connection with comprehensive cybersecurity legislation, we must remain vigilant and ensure that the public’s access to essential health and safety information is protected.

Securing our nation’s critical infrastructure information is a pressing national priority.  So, too, is protecting the rights of Americans to know what their government is doing.  Without the right to know the facts about threats to their health and safety, the American people are kept in the dark about dangers that directly affect their lives. The last decade has taught us that striking the right balance between security and openness is no easy task. This Sunshine Week provides a timely reminder of just how much is at stake for all Americans.

Sen. Leahy was inducted into the Freedom of Information Act Hall of Fame in 1996. He is the author of the Electronic FOIA Amendments of 1996 and coauthor of the OPEN Government Act of 2008 and the Faster FOIA Act of 2011. He recently authored FOIA provisions in the National Defense Authorization Act.

This viewpoint represents his opinion and does not necessarily represent the opinions of BYU, its administration or The Church of Jesus Christ of Latter-day Saints.

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