Justice News

Principal Deputy Associate Attorney General Jesse Panuccio Delivers Remarks at the Sunshine Week Kick-Off Event
Washington, DC
United States
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Monday, March 11, 2019

Thank you, Melanie, for that introduction and, as always, for your exemplary leadership on government transparency.  I have now had the pleasure of working with you for more than two years on these issues, and I think this is the third Sunshine Week we have kicked off together.  Thank you for your tireless and excellent work as a government leader on Freedom of Information Act policy and administration.  The American people are fortunate to have you in their service.

The same holds true for the many professionals here today who have devoted their careers to government transparency.  Welcome, all, to the Department of Justice.  We are so pleased you could join us for the kick-off of this year’s Sunshine Week.  This week is an opportunity for us to recognize the importance of transparency in government and the many contributions of civil servants dedicated to that goal.

You should be proud that you are the stewards of a great tradition.  One of the underpinnings of our republican government, in which the people are sovereign, is that the public has both a right and a need for information about the affairs of state.  The connection between transparency and good government is a pillar of our political philosophy—an idea that permeated Founding-era thought.  For example, the great political philosopher  and economist Jeremy Bentham, in his 1791 Essay on Political Tactics, devoted the second chapter to discussing the idea “Of Publicity.”  He explained that publicity of government proceedings is “the fittest law for securing the public confidence, and causing it constantly to advance towards the ends of its institution.”  “The efficacy of this great instrument,” Bentham said, “extends to everything—legislation, administration, judicature.”  “Without publicity,” Bentham warned, “no good is permanent: under the auspices of publicity, no evil can continue.”  Bentham outlined the many benefits of openness in government: it constrains government officials to perform their duty; it secures the confidence of the people, and their assent to the measures of government;  it enables the governors to know the wishes of the governed; it enables the electors to “act from knowledge” in casting their ballots for representatives; and it provides government officials “the means of profiting by the information of the public.”

Across the Atlantic, American revolutionaries sounded the same theme.  Patrick Henry, for example, declared to the 1788 Virginia Ratifying Convention that one of his objections to the proposed Constitution was that it did not mandate sufficient publicity of Congressional proceedings.  He argued that the “liberties of a people never were, nor ever will be, secure when the transactions of their rulers may be concealed from them.”

Although that first generation of Americans fostered accountability in their new federal government through a number of constitutional provisions, Patrick Henry was perhaps prescient in realizing that a free people might ultimately demand more information about the affairs of government.  The 1967 Freedom of Information Act represents one great advancement towards that end.  The FOIA, with its Congressional exemption, might not have fully satisfied Henry.  He was, after all, objecting to the lack of required publicity for the legislative branch.  But the FOIA nonetheless has become a powerful tool in ensuring Americans have access to a broad swath of government information.  Today, those who use FOIA run the gamut from traditional news media, to newer online-only media outlets, to advocacy organizations, to—most importantly—individual citizens.  We have seen, time and again, government officials and programs held accountable based on records sought by ordinary citizens.

Now, this is not to say that any and all information held by the government should become public on demand.   Even Patrick Henry, in his animated plea to the Virginia Ratifying Convention, recognized that while it is “an abomination . . . to cover, with the veil of secrecy, the common routine of business,” some government information, such as that relating to “military operations or affairs of great consequence” must be kept secret until “the end which required their secrecy should have been effected.”  The FOIA, with its exemptions for certain sensitive information, attempts to strike this balance.  The difficult but critical work of policing these boundaries falls to you, the federal government’s FOIA professionals.

We know the burden of that work grows by the day.  Each year, we set a new record for the number of FOIA requests.  Just this past fiscal year, the Department of Justice received more than 96,000 requests, an increase of 12,000 from the prior year.  Every request is important, and a great number of them come from individual Americans seeking records relating to their own interactions with government.  Unfortunately, as with everything in life, there are excesses, and those excesses strain the system.  Some groups have turned FOIA into a means of generating attorneys’ fees or of attempting to shut down policymaking.  Immediate litigation has become a feature of FOIA administration rather than a last resort, and the result is often that large and complex requests by institutional actors are moved, by court order, ahead of requests by average citizens.

It is you, the FOIA professionals, who have to manage these and many other challenges to ensure that the FOIA is still a vibrant means of ensuring government transparency.  Given the demand and importance of this work, during Sunshine Week the Department takes a moment to thank the devoted professionals across agencies who perform the endless, sometimes painstaking work of processing FOIA requests.  Your burdens are weightier than ever, but your professionalism endures.  Please know that we appreciate you and the work you do in helping secure the liberty promised at our Founding through accountable government.  We will later recognize the outstanding work of some of our colleagues, and we hope their work will serve as an inspiration to all who hold positions of public trust.  For my part, I’d like to take a moment to recognize Jeff Hall, a senior counsel in the Associate Attorney General’s office who has done outstanding work on FOIA issues for the last two years.

Here at the Department of Justice, we take seriously our responsibility to encourage government-wide compliance with FOIA.  We must all continually review our policies and practices to ensure that records are released lawfully and efficiently.  I have taken great pride in serving as the Department’s Chief FOIA Officer and ensuring that our FOIA programs are equipped to handle the Department’s FOIA responsibilities.  Since our 2009 FOIA Guidelines were issued, the Department has emphasized that improving FOIA performance requires the active participation of agency Chief FOIA Officers.  Earlier this year, I issued a memorandum to all agency General Counsels and Chief FOIA Officers stressing this point and asking that all agencies meet their statutory obligation to ensure that high-ranking officers serve as the Chief FOIA Officers.

Another effort worth highlighting is the work of the Department on the National FOIA Portal, which was mandated by the FOIA Improvement Act of 2016.  Last year during Sunshine Week, we were pleased to announce the development of the Portal on FOIA.gov, where a member of the public can now make a request to any agency from this single website.  Since the release the National FOIA Portal, FOIA.gov has received over a million page views and nearly 9,000 requests have been submitted to various agencies through the site.  I want to thank all the agencies that worked with us to achieve that initial level of interoperability with the Portal.  This significant IT project was completed on schedule and worked from day one.  It should serve as an example to the rest of government.

Building on these efforts, just last month DOJ and OMB issued joint guidance to agencies on becoming fully interoperable with the Portal.  This joint directive provides two ways for agencies to achieve full interoperability based on how they are currently tracking and managing their FOIA requests.  As we continue to improve FOIA.gov, we welcome feedback from both agencies and requesters.   

These are just a few of the accomplishments of the last year.  Our work to make government transparent and accountable continues, and our appreciation for your efforts to achieve this goal endures.   

As a closing thought, I’ll leave you with the wisdom of Bentham: “of two governments, one of which should be conducted secretly and the other openly, the latter would possess a strength, a hardihood, and a reputation which would render it superior to all dissimulations of the other.” 

Thank you very much.

Updated March 11, 2019