This week both the Tribune and Sun Times ran editorials urging Governor Quinn to sign Illinois Senate Bill 189. This bill is the new version of the Freedom of Information Act that was authored primarily by Attorney General Lisa Madigan. This bill is far from one that could be considered representative of the best practices in openness and transparency in our country. Nonetheless, the arguments of the e are as shallow as is the history of transparency in our state. You can read the IML’s take here.
On July 9th the IML authored a letter to Governor Quinn stating the following arguments with my responses included:
IML “The primary reason that this system will probably fail is that it was seemingly drafted without a basic understanding of how local governments operate. It is our understanding that the principle drafters of this legislation, in conjunction with the Attorney General’s Office, were the Illinois Press Association and other special interest groups. While they may be knowledgeable in their chosen fields, they are less than experts on municipal administration and the systems and methods of maintaining municipal records systems,” (pg. 2)
CJP Response: To follow this thread of logic, the laws that govern the availability of government records must bend to the record keeping practices of the local municipalities. Open record laws cannot be reliant on the record keeping practices of those who stand to feel the repercussions of the records being released. This logic would stop the farmer from upgrading the lock on the hen house because the fox lacks the ability to bypass the new lock. Municipalities must be motivated to reform the way they operate and store information. Innovation of our government systems will be driven by responsiveness to fresh and progressive open records laws not through rewarding municipalities for maintaining antiquated systems that allow them to foil public inspection of their operations.
IML “….compliance with the requirements of [FOIA] is a primary duty of public bodies to the people of this State, and this Act should be construed to this end, fiscal obligations notwithstanding.” Municipalities provide a myriad of very fundamental services to their citizens—including fire and police protection, roads, highways and other vital infrastructure, utility services, and other basic and necessary services. Now, with Senate Bill 189, these vital services, by statutory direction, become less important than responding to FOIA requests. With this new law, providing paperwork about governments’ activities becomes more important than the activities themselves,” (pg. 2) “It is regrettable that there may be cases where municipalities will be forced to lay off firefighters and police officers so that they can afford more FOIA lawyers and other responders to help comply with this “primary duty”,” (pg. 2).
CJP Response: IML argues that the new FOIA places new burdens on their members to respond to FOIA requests that the old FOIA did not. This is because the members of the IML would use “overly burdensome” exemptions or purposely short staffed FOIA offices within their agencies to get out of responding to requests. The new FOIA legislation puts into words what was contained in the spirit of the old legislation, but was frequently ignored. Public agencies must operate from the ground up to insure that the agency can be responsive to requests for information from the citizens they serve. Digitizing operations and making records frequently requested available online can substantially reduce expenditures handling requests.
IML First 50 pages free of charge “If a requester submits voluminous requests, then, to avoid paying for copies, all he or she would need to do would be to break down that request into a number of smaller requests. Instead of asking for five-years worth of records at one time, the requester could make five separate requests for the records for one year—or one month—or whatever increment would get the number of pages to 50 or fewer. Now, what would otherwise have cost the requester a few hundred dollars to obtain is now provided for free—on the taxpayer’s dime,” (pg 2-3).
CJP Response: The simple fact is that there are already complete exemptions from fees for requests that are in the public interest. A government agency should not be charging a citizen who is trying to learn more about their government’s operations for copying fees. Once again digitizing their operations and making information available online would significantly reduce or completely eliminate this problem all together.
IML The personal-privacy exemption “Governments must collect a large amount of data in order to perform their vital functions. The release of much of this data would injure citizens. A great deal of federal and State law prohibits the disclosure of private information. Senate Bill 189 muddles this concept. It sets forth an ambiguous and subjective standard for determining what constitutes an unwarranted invasion of personal privacy, and it requires that any suspected exemption be sent to the PAC for preapproval. This will result in a staggering amount of documents being shipped back and forth,” (pg. 3).
CJP Response: The exemption of personal privacy is probably the most cited by local agencies to prohibit the release of their information to the public. Few municipalities are interested in protecting a citizen’s privacy and are really concerned with prohibiting public scrutiny of their actions. An easy way to alleviate this problem is for every public agency in the state to produce a document listing the documents they produce and what if any are prohibited from release for personal privacy arguments. The public could then have input about what is protected and not protected. The simple fact is that most municipalities have never prompted a discussion about the data they hold with those they hold the information about. Why? – Because, much of the data may shine some light on the activities of the agency. Most data would never injure anyone if it were released.
IML “The discussion was also largely devoid of any mention of the fact that FOIA is often used as a political tool not to gather information but to harass and harangue public officials. The bottom line is that the rights and remedies for public bodies cannot be given short shrift,” (pg. 4).
CJP Response: First, one must define “harass and harangue” to have an intelligible discussion on this topic. I would bet that what the IML considers “harass and harangue” is very different then how the public would define it. I have a feeling that a citizen using information about the small misdeeds of officials to question their fitness for their office fits squarely in the “harass and harangue” definition. For better or worse, politics goes hand in hand with democracy and thus using information about the actions of public officials to embarrass them will be part and parcel of a public official’s life. This is not reason to restrict access to public documents or data generated by public agencies; rather, it is reason to elect officials that do not behave in a manner that allows FOIA requests to bring public disdain for their actions.
IML “Currently, when a FOIA request is rejected, there is a procedure to appeal to the head of the public body before the matter proceeds to litigation. This is an important procedure that affords public bodies the opportunity to reconsider decisions and correct potential problems. Unfortunately, Senate Bill 189 eliminates this procedure, which will only encourage increased confrontation and litigation.” (pg. 4) “This unequal system of review places public bodies—and the citizens they represent—at a distinct disadvantage when it comes to legal remedies,” (pg. 5).
CJP Response: Part of the new FOIA creates a new office within the Illinois Attorney General’s Office called the Public Access Counselor. This office would be empowered to review ever single denial from a public agency in Illinois based on personal privacy and issue a decision that is binding on the public agency. The decision would force public agencies to release information if the Public Access Counselor believed the exemption based on personal privacy was being misused. If the Public Access Counselor agreed with the agency the citizen would still have the ability to litigate the denial. IML is stating that the removal of the ability of the citizen to appeal their denial to the head of the agency removes the ability of the agency to reconsider the denial they authored. Sorry, but can anyone out there please give men evidence of an average citizen that was denied records, appealed, and won the appeal? In Illinois, if you want records you have to be ready to go to court and sue because public agencies know that the average citizen is not going to sue them so denials are issued pro forma. This new role for the Public Access Counselor empowers the citizen to appeal to an “independent” arbiter before having to go through the costly expense of litigating for their rights. The IML knows that litigation costs stop many from exercising their rights for access and do not want anyone screwing with their ability to restrict access. Is there really a way for en entire county, city, or town, to be outmatched in a court of law in Illinois against the average citizen in Illinois? This allegation is absurd on its face and not worthy of addressing. It was included for your entertainment only.
Conclusion: The IML has no interest in increasing public access to governmental records or the data the agencies generate. Their letter to Governor Quinn is filled with hyperbolic language meant to scare the Quinn administration into vetoing the bill and putting it back into the hands of the general assemble. Obviously, the IML believes they have the necessary relationship with legislators to a degree needed to have the bill changed. This fact alone should be enough to scare Quinn, the man that has been all about transparency his entire political career, into signing the bill immediately. Unfortunately, he has not because the bill was sent to him on June 26th and he has yet to sign it. Municipal agencies throughout Illinois need to innovative in their movement from paper records to digitizing their operations. Digitizing can serve the interests of the citizens of Illinois and provide great advances in transparency and in how services are provided. Unfortunately, in Illinois it seems like municipalities are seeking to continue to operate in the significantly restricted fashion they have been for decades. The IML’s letter is further evidence that advances in information technology that have greatly expanded public access and services in other countries continue to be ignored in Illinois.