Illinois’ Freedom of Information Act gets a make-over
By Jamie Loo
First Amendment reporter
Sweeping changes to the Illinois Freedom of Information Act (FOIA) have been signed into the law, which open government advocates say will result in better access to public documents and more government transparency.
FOIA laws give residents the right to inspect documents on the public record such as meeting minutes, budgets, court documents and documents involved in the government decision making process. Freedom of information laws vary from state to state and generally apply to public bodies including city councils, boards and commissions, as well as some other entities that receive tax dollars. Although the federal FOIA was adopted in 1966, Illinois didn’t enact a state freedom of information law until 1984.
One of the key changes to the Illinois FOIA law is the state’s powers to enforce the law, said Terry Pastika, executive director of the Citizen Advocacy Center, which works on government accountability issues.
The law codifies the position of the Public Access Counselor (PAC) in the state attorney general’s office and empowers the counselor to enforce FOIA law. The public can file complaints and have them reviewed by the counselor for violations of the Open Meetings Act or the denial of records. The PAC has subpoena power and can compel public officials to cooperate in investigations. The Attorney General can issue advisory and binding opinions on disputes, and there are also civil penalties between $2,500 and $5,000 for public bodies that don’t comply with FOIA.
Illinois Press Association (IPA) director of government affairs, Beth Bennett, said these provisions provide important recourse for residents fighting to obtain public documents. Prior to the change, citizens had to take their cases directly to court. The new rules also require that a Freedom of Information Act request denial include “the specific reasons for the denial, including a detailed factual basis and a citation to supporting legal authority,” which is stronger language than the previous law.
The new measures include guidelines and deadlines for how public bodies handle FOIA requests. Public bodies are now required to have a Freedom of Information Act officer, who must complete a training course by the state on responsible processing and compliance with the statute. Pastika said only one other state in the Midwest requires FOIA training. The bill also shortens the response time for FOIA requests from seven to five business days. Public bodies must provide the first 50 pages of a document for free and photocopying fees after that are capped at 15 cents per page.
Bennett said the IPA, a trade association which represents daily and weekly newspapers, saw many good provisions that they’ve wanted for years enacted in the bill. For example, Bennett said settlements between public bodies and groups such as insurance companies were often sealed before, forcing journalists and the public to go to court to get those documents. Settlements are now considered public documents.
Public bodies often enter into contracts with outside entities for government work, Bennett said, and the courts had varying interpretations on whether these contracts were public. The law now clearly says that these contracts are open to the public, she said. The media often ran into problems obtaining arrest reports and criminal history records, Bennett said, so to work around the prior Illinois FOIA law the Media Arrest Report Law was passed. The FOIA law now includes language from that law, Bennett said.
There are some however, that are opposed to the changes such as the Illinois Municipal League which is a lobbying group that represents city and town governments.
In a letter to Gov. Pat Quinn, the league says that the new requirements will create an overwhelming burden on local officials who have to process Freedom of Information Act requests every day. Many municipalities have small staffs and the shortened time period to respond to requests will mean an increase in labor. Local governments have cut back on printing and copying to save money, and asking them to produce up to 50 pages of documents free of charge will hurt their budgets.
The IML noted that any court reviews of the PAC’s decisions must be filed in Cook County or downstate in Sangamon County, which would make it difficult for public bodies that are far from these counties to seek legal remedy. The law doesn’t have eligibility guidelines for the FOIA officers, which raises questions about appointment procedures and if there is a conflict of interest for the designee to hold other municipal positions. The league letter said the law also ignores the “legitimate needs of government to keep some information confidential” and doesn’t adequately protect government rights in the process. FOIA has been used as a “political tool not to gather information but to harass and harangue public officials,” which the IML claims were not recognized in the bill.
“I think more work needs to be done in the exemptions section,” Pastika said.
The Citizen Advocacy Center director said restrictions on what can be claimed under privacy exemptions have improved but overall Illinois still has more exempt documents than other states. Bennett, from the IPA, and Pastika said draft documents are still exempt and the law doesn’t define when a “preliminary document” becomes open to the public. Bennett said it’s also not clear when the disciplinary action records of public officials can be released, so for now those documents can be protected by personnel files.
SIDEBAR: Public set to benefit from FOIA changes
The Illinois Public Access Bureau received 1,389 total requests for assistance with the state’s Freedom of Information Act (FOIA) law and Open Meetings Act (OMA) in 2008. The majority of the freedom of information cases came from members of the public who filed 231 requests for assistance from the state attorney general in obtaining records from public bodies; 290 FOIA requests for documents from the attorney general’s office; and made 173 phone inquiries. The attorney general’s office also received 128 written inquiries and 130 phone inquiries from the public on the OMA.
In both categories, members of the public made more requests than the media and government officials. Overall, the smaller number of requests from the media may be because professional journalists tend to be experts on the FOIA and OMA laws and therefore would have fewer questions for the attorney general’s office. Journalists also often resolve disputes over denied information requests and open meeting issues with public bodies before it reaches the level of the Public Access Bureau or the attorney general. Government officials contact the attorney general’s office about FOIA and OMA for a variety of reasons, such as how to apply the law to specific meetings and whether requested documents can be disclosed.
In FOIA cases, the media made 37 requests for help obtaining records from public bodies, 20 requests for internal attorney general documents and 23 phone inquiries.
Government officials made 123 phone calls with FOIA inquiries, 13 FOIA requests for attorney general documents and 26 asked for assistance obtaining documents from public bodies. The media filed 15 written requests and 14 phone inquiries about the OMA, and government officials made 127 calls and 39 written inquiries about the law.
On the Web:
To read highlights of the changes to the FOIA and OMA laws go to, http://www.illinoisattorneygeneral.gov/pressroom/2009_08/SB189_summary.pdf.