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Government LawyersThe newsletter of the ISBA’s Standing Committee on Government Lawyers

June 2011, vol. 12, no. 4

Freedom of Information Act—Recent & proposed changes

One area of law that is perpetually changing and very challenging for government attorneys is the application of the Illinois Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq.). In light of recent public corruption charges, FOIA has been ever-evolving. The recent amendment to FOIA during the last legislative cycle made the most sweeping changes to FOIA since its inception. See Public Act 96-542, effective January 1, 2010. With those changes, however, have come attempts to revise and redefine the scope of FOIA. This article seeks to highlight some of the more significant changes made to FOIA, as well as identify attempts to revise it further.

Illinois’ history and compliance with FOIA has not always been stellar. Illinois first approved FOIA in 1984. See Public Act 83-1013, effective July 1, 1984. However, Illinois was the last state to enact a law permitting access to public records. A 1999 audit of state government organizations by The Associated Press found that more than two-thirds of those organizations did not comply with FOIA. A 2006 investigation by the Better Government Association yielded a 60 percent noncompliance rate with almost 40 percent of the Illinois governments tested never even responded to the FOIA request. <www.daily-chronicle.com/mobile/article.xml/articles/2011/02/21/71473566/index.xml>. Yet in recent years, specifically with the sweeping amendment to FOIA effective in January 2010, the Act has taken on a new significance in Illinois, requiring government and governmental agencies to comply with the ever changing law.

FOIA only applies to “public bodies” as that term is defined in the Act, which encompasses “all legislative, executive, administrative, or advisory bodies of the State, state universities and colleges, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees, or commissions of this State, any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees thereof, and a School Finance Authority created under Article 1E of the School Code.” 5 ILCS 140/2.

The general rule contained in FOIA remains that all “public records” in the possession of “public bodies” are subject to disclosure, unless covered by an exemption. Each public body must have one or more employees designated to act as a FOIA officer, receive training and develop a list of documents or categories of records that are immediately disclosable. 5 ILCS 140/3.5. Many larger public bodies had already designated such a person, but the codification of that practice provides consistency and accountability, allowing FOIA officers to work together to develop best practices, stay current on legislative changes and provide uniform training for employees.

A public body, under the amended FOIA, has five business days (previously seven) to respond to a request for public records unless the time is properly extended for another five business days, pursuant to reasons contained in 5 ILCS 140/3(e). A public body may also honor oral requests for inspection and copying. 5 ILCS 140/3(c).

Requests for information may still be denied by claiming compliance with the request would be “unduly burdensome” and there is no way to narrow the request. Repeated requests for the same documents from the same person fall into this category. 5 ILCS 140/3(g). Furthermore, a public body may elect to redact or not redact exempted information from a document that is not otherwise exempt disclosure. 5 ILCS 140/7(1).

Exemptions

Sections 7 and 7.5 of the FOIA (5 ILCS 140/7, 7.5) contain approximately 45 separate exemptions. Specifically, section 7.5’s “Statutory Exemptions” contains independent statutes exempting information from disclosure under FOIA in order to protect the privacy and confidentiality of specific types of information. Section 7 contains exemptions including “private information” (5 ILCS 140/7(b)), “personal information” (any information where the subject’s right to privacy outweighs any legitimate public interest in disclosure) (5 ILCS 140/7(c)), records created in the course of administrative enforcement proceedings (5 ILCS 140/7(d)), and “preliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated[.]” 5 ILCS 140/7(f). Also exempted from disclosure are performance evaluations for all public employees. 5 ILCS 140/7.5(q); 820 ILCS 40/11.

Appeals and the Public Access Counselor

Section 9.5 of FOIA was amended to address the issue of requests for records which were denied and the appeal was made to the head of the public body to which the request was made and denied. With this amendment, an individual, who is denied a request by a public body, can file a request for review with the Public Access Counselor (PAC) in the Office of Attorney General. The section sets out the process for review by the PAC. On requests for review, if the public body has denied the request based on the “unwarranted invasion of personal privacy” (5 ILCS 140/7(1)(c)) or “preliminary drafts, notes, recommendations, memoranda and other records in which opinions expressed” exemptions (5 ILCS 140/7(1)(f)), the public body must provide written notice to both the requester and the PAC of its intent to deny the request in whole or in part. A requester has 60 days after the date of final denial to file a request for review with the PAC. Requesters denied access may also file an appeal in court. If they prevail, they can now recover attorneys’ fees and costs. Public bodies found to have willfully and intentionally failed to comply with the FOIA are now liable for a civil penalty between $2,500 and $5,000 for each violation.

Updates to FOIA

Since FOIA’s amendment by Public Act 96-542, there have been a number of other proposed legislative changes. The Chicago Tribune recently reported on April 3, 2011, that “A little more than a year after Illinois lawmakers rewrote open records laws promising a new era of transparency and accountability, frustrated mayors, school superintendents and police chiefs are back in Springfield, looking to undo many of the provisions. More than three dozen bills—from minor tweaks to major overhauls—were filed this year to change the state Freedom of Information Act (FOIA), most with the goal of reducing access to records.” <www.chicagotribune.com/news/local/ct-met-foia-attorney-general-0404-20110403,0,790946>.

Most recently, the disclosure of information related to the issuance of a Firearm Owner Identification card (FOID cards) has been at the forefront of discussion at the State Capital. The Attorney General’s Office, in its interpretation of the Act, concluded that information regarding FOID cards is disclosable. However, the General Assembly has taken up several bills to protect the information from being disclosed. House Bill 3500 passed both houses of the General Assembly and amends section 7(v) of FOIA to expressly authorize the withholding of “[n]ames and information of people who have applied for or received Firearm Owner’s Identification Cards under the Firearms Owners Identification Card Act.”

As amended by Public Act 96-542, a public body employee’s personnel evaluations were subject to disclosure under FOIA. After the outcry from various union groups, an amendment was passed by the General Assembly to exempt such records from disclosure. The legislation was amendatorily vetoed by the Governor, but his veto was overridden by the General Assembly and became law. See Public Act 96-1483, effective December 1, 2010.

Another proposed reform sought by the General Assembly that has received widespread attention is Senate Bill 39, sponsored by Senator Garrett. The bill was inspired by the investigation surrounding former Metra Executive Director Phil Pagano, who committed suicide by train near his Crystal Lake home in May. In its original form, Senate Bill 39 would have made communications between a public body and an attorney acting as a lobbyist on its behalf a public record. Sen. Susan Garrett, D-Lake Forest, said Metra often denied her request for copies of lobbying contracts she requested in pursuit of an audit, because the lobbyists happened to be attorneys. In the most recent amendment to Senate Bill 39, the scope of the bill has been refined. SB39, in its current amended form, provides that the definition of “public records” includes, “Communications and materials exchanged between a lobbyist and a public body that concern either lobbying performed on behalf of the public body by the lobbyist or the expenditure of public moneys for goods or services provided on behalf of the public body by the lobbyist are public records and are not exempt from inspection and copying unless exempt under Section 7.”

The legislation amends section 7(m) of FOIA, currently providing that “Communications between a public body and an attorney or auditor representing the public body that would not be subject to discovery in litigation, and materials prepared or compiled by or for a public body in anticipation of a criminal, civil or administrative proceeding upon the request of an attorney advising the public body, and materials prepared or compiled with respect to internal audits of public bodies.” However, “communications and materials exchanged between an attorney-lobbyist and a public body that concern either lobbying performed on behalf of the public body by the attorney-lobbyist or the expenditure of public moneys for goods or services to be provided on behalf of the public body by the attorney-lobbyist are public records, and are not exempt from inspection and copying[,]” unless otherwise exempt. The bill has not advanced from the Senate and remains in the Assignments Committee. The bill’s status can be tracked at: <www.ilga.gov/legislation/billstatus.asp?DocNum=39&GAID=11&GA=97&DocTypeID=SB&LegID=54560&SessionID=84>.

Other information sought to be excluded from disclosure include victim impact reports submitted under the Open Parole Hearings Act (House Bill 1928), information related to “vexatious requests” (Senate Bill 1645), information exempted under the Public Aid Code (House Bill 2259), to name a few. House Bill 1716, Senate Amendment 1, addresses some perceived shortcomings in FOIA related to “recurrent requesters” and commercial requests. There are also many bills that are still being considered that only make technical changes to the FOIA which can be amended to include other more wide ranging changes.

The sweeping changes that took place in 2010 to FOIA are being implemented and the full extent of such changes is starting to become apparent. As the realization of these changes become clearer, it is apparent from these legislative proposals that further revisions and in some cases, a complete reversal of some of the changes made in 2010 is on the horizon. ■


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