The state of Illinois has a serious problem with FOIA compliance. The Freedom of Information Act (FOIA) requires, among other things, that each FOIA eligible government agency maintain a list of records that one can obtain through a request in order for the department to be FOIA compliant. From our previous organizational experience using FOIA to report on news across the city, we suspected that FOIA compliance was a major issue in Illinois. We decided to test the state’s FOIA compliance by requesting just the list of available records that the law requires them to keep and produce upon request. Each agency’s response was graded below, demonstrating that the issue of FOIA compliance is an even bigger problem than we originally believed.
Grading Criteria
- Each department is graded on a scale of 1-10, ten being the highest. The score is then converted to a letter grade, using a standard grading scale (A=9, B=8, C=7, and so on).
- The following categories earn the department one point each:
- Responding within the legally mandated timeframe (five days)
- No additional dialogue with the agency required to obtain documents
- Sending all of the requested data
- Documents are easily legible and specific
- No catch-all category of records
- Response informs us of our right to review
- Response mentions the law that requires them to make the list (140/5)
- The last category counts for three points
- Complying with the law by sending the documents that they are mandated to create and maintain.
History
In 1984, the state of Illinois became the last state to enact a version of the Freedom of Information Act (FOIA). Until that point, only certain records were considered publicly available and the legality of the public’s access to those records existed only in common law, meaning one court decision could have completely overturned the public’s ability to access any records at all. 5 ILCS 140/1, the first section of the new FOIA, announced the purpose of the new legislation. “Pursuant to the fundamental philosophy of the American constitutional form of government, it is declared to be the public policy of the State of Illinois that all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of this Act. As explained later on in the section, the Illinois Legislature passed this momentous statute as a means of protecting American democracy. Without access to documents about the government’s operations, how could the public be expected to make informed decisions in elections?
To achieve this transparency, the law makes a number of demands of government agencies. First and foremost, the statute creates the legal presumption that all records kept by the relevant public bodies are subject to disclosure. There are a few exceptions to this presumption, some of which are outlined in the statute itself and will be discussed later, but the presumption of disclosure is significant because it forces the public bodies to provide a reason for every instance of non-disclosure. Furthermore, the 2009 Amendments to Illinois’ FOIA laws require the public bodies to prove that their claimed exemption from disclosure is appropriate by a standard of clear and convincing evidence. In addition to the presumption of disclosure, the Illinois statute also makes explicit that certain kinds of records are disclosable in virtually any scenario. Examining the types of records named in 5 ILCS 140/2 helps illustrate the broad reach of the act. Among these record types are payroll documents, records of the receipt and use of public funds, and individual arrest reports within 72 hours of an arrest. Full compliance requires the government to turn these records over in almost every instance. The variety of records named in these sections demonstrate that FOIA is intended to empower individuals to gain information pertinent to personal issues, like criminal history, as well as more political issues like government spending.
Section three of the statute allows public bodies five business days to respond to a FOIA request. Should the government agency need more than the statutorily-provided five business days, they may request an extension of “no more than 5 business days from the original due date,” unless the parties come to a separate agreement regarding the deadline. A failure to respond with either an extension request or the requested records is legally considered a denial. If a request is too burdensome on the public body, they may withhold the record, under very narrow circumstances. First, it must be impossible to narrow the request any further. This also means that the public body must explain what part of the request is too burdensome, so as to allow the requesting party the opportunity to refine the search. If the search truly cannot be narrowed, the public body can only withhold the records when the burden on the agency outweighs the public’s interest in the records. Regardless of the reason for denial, Section 9 of the act requires the public body to notify the requester in writing the reason for a denial with a “detailed factual basis” for any exempt record. A requester who did not get the records they wanted has the following two options: (1) requesting review with the Public Access Counselor at the Office of the Attorney General, and (2) filing a lawsuit for injunctive or declaratory relief.
2009 Amendments
In 2009, Illinois passed some amendments to their FOIA law that were intended to increase access to government records. The Amendments were inspired in part by a 2009 memo released by President Obama, who was then aiming to have the most transparent administration in the country’s history. One of the biggest features of the amendments was section 3.5, which created a new government position, the Freedom of Information Officer. Compliance now requires departments to designate at least one employee to serve in this position, whose responsibilities mostly consist of overseeing the request process to make sure requests do not get lost or ignored. In addition, the Freedom of Information Officers are required to develop a list of records or category of records “that the public body shall immediately disclose upon request”. These lists of records are crucial to the success of any FOIA law, as they provide the public a general idea of what kinds of records should be available. Without such a list, the public will have little to no information on the legitimacy of a public body’s denial, allowing the government to conceal records with impunity. When these amendments were passed, many legal analysts looked to Illinois to be a leader in government transparency that other states should emulate. Of course, this promise relies completely on the government’s compliance with the law.
Analysis
While the 2009 FOIA amendments promise increased transparency on paper, evidence suggests that Illinois is still far from realizing its goal of a transparent government. A 2007 study by the National Freedom of Information Coalition gave Illinois an “F” on its FOIA report card, earning only 59 of 100 possible points. Part of the issue is the cost of challenging a FOIA denial, whether it’s in court or through the Public Access Counselor. The simple fact is that the appellate process provided by Illinois’ FOIA law requires more time and money than most individuals have. Over 99% of FOIA denials nationwide go unreviewed, so many public agencies have begun to expect that the requesting party will not review their denial. Without fear of consequences, government offices have little incentive to release records that could fuel their political opponents. To this point, many of the FOIA cases that have made it to trial in Illinois were filed by media companies, who tend to have more of the legal resources necessary to challenge a FOIA denial. The lack of media attention on ongoing FOIA lawsuits, however, indicates that interest in government transparency may be waning. At the time of writing, the Chicago Justice Project was engaged in two different FOIA suits, neither of which have received adequate media coverage.
Causes
Data and CJP’s own anecdotal experience demonstrate that, while Illinois’ FOIA law may look good on paper, the various government bodies feel no obligation to comply with the laws in practice. Additionally, there appears to be a similar disconnect between the public statements Illinois’s and Chicago’s elected officials release and their private opinions of FOIA. Publicly, Lori Lightfoot praises the value of government transparency and claims to be grateful for media publications acting as watchdogs over government agencies. When Chicago agencies began issuing automated denials at the beginning of the COVID-19 pandemic, Lightfoot denied responsibility, saying “We may have asked for additional time, but we certainly haven’t taken that action yet, that I am aware of. Obviously, responding to a FOIA request is something we take very seriously.” While her quote reflects an understanding of the necessity of FOIA laws, she’s been less enthusiastic when FOIA has been used to expose her own wrongdoing. When the Chicago Tribune, using information obtained from a FOIA request, exposed Lightfoot’s dishonesty regarding parking enforcement during the pandemic, the Mayor canceled her subscription to the news paper and penned an angry open letter calling the Tribune’s credibility into question. In the letter, she said, “I expect retaliation from the editorial board and line reporters,” making clear the fact that she views her relationship with the media as adversarial. Wisely, Lightfoot’s press secretary intervened before she could publish the letter, perhaps to maintain a cordial relationship with the press. This was not the first time Lightfoot showed her true colors with regards to FOIA transparency. When news stations announced their plans to release video from an errant police raid on Anjanette Young, Lightfoot initiated legal action aimed at Young’s lawyer to suppress the footage.
Unfortunately, there is little to be done about the fact that most people will not have the time, money, or legal knowledge to litigate these issues on their own. Instead, efforts to increase FOIA compliance should focus on the following two factors that contribute to the lack of government transparency: judicial compliance with the intention of the FOIA act and media coverage of the failures of FOIA as it functions today. The media and the courts are arguably the two institutions most burdened with enforcing FOIA, as it exists today. Judges must be impartial and aim for disclosure whenever possible, without showing deference to their political allies in other departments. When the entire state and city governments appear complicit in a culture of non-disclosure, it’s up to the media to bring the issue more prominently into the public eye. Currently, these two institutions are failing at their respective roles in enforcing FOIA laws. The following will explore these failures further.
The Courts
A basic fact of the American judicial system is that statutes mean nothing without judicial enforcement, which means that every new statute affords judges an opportunity to shape how the law will function going forward. Illinois’ 2009 FOIA amendments are no exception. When denying requests that are “unduly burdensome” as the Chicago Police did with CJP’s request for a list of records kept, public bodies often cite to a 2013 case from Illinois’ appellate courts, Shehadeh v. Madigan. In this case, the plaintiff originally requested documents from the state’s Attorney General’s office that would help explain some of the policies that public officers are expected to follow in complying with FOIA requests. Following a dispute about whether the Attorney General responded in the statutorily imposed five-day window, the court focused on the extent to which the office would have to disclose their search efforts to the requester when invoking the undue burden exemption. Relying on decisions from various federal courts, the requester here asserted that the public body should have to provide some detail as to why a particular request was unduly burdensome. While the court acknowledged that federal decisions are typically persuasive for state courts, they are not bound to follow the precedent in every case. Departing from these federally-accepted standards, the court found the Attorney General’s Office had no duty to explain their search to the requester and that simply replying that the request was unduly burdensome was sufficient to invoke the exemption.
This decision broke directly with the text of Illinois’ FOIA statute, which requires public bodies to explain in writing why the request would be unduly burdensome and the extent to which compliance would impede on other government operations. Instead, the court chose to carve out an exception to this requirement when, as was apparently the case above, the number of records alone is sufficient to show that the request is burdensome. This kind of judicial law-making is generally frowned upon in the United States, where the Constitution dictates that elected officials in state or federal congresses should be charged with writing laws instead of judges. Further, the decision does not provide any explanation as to what constitutes a “facially burdensome” request. As a result, government agencies have become quick to use the unduly burdensome exemption without explaining what about the search is burdensome, like the Chicago Police did to CJP’s request for their list of records kept. This makes it more difficult for requesters to narrow their request, since information about the search or records is necessary to eliminate the records that are not essential to the request. Eight years after the Shehadeh decision, one can see how the courts effectively undermine the purpose of the FOIA law by creating exemptions like this.
The Media
The First Amendment, as it’s been interpreted by our courts, puts the media in a unique position with regards to FOIA laws. Some legal analysts refer to the media as the fourth estate, referring to its role keeping the other three branches of government in check. Aside from their First Amendment protections, media companies tend to have more resources to litigate FOIA lawsuits. Many FOIA laws, in Illinois and nationwide, were written with this in mind and feature separate clauses for media or commercial FOIA requesters. A quick search of existing Illinois FOIA case law reveals that media organizations, like the Peoria Journal Star or Duncan Publishing Company, have played a big part in shaping FOIA across the state. Given the media’s business interest in publishing important information along with the legal protections they have as the fourth estate, it should come as no surprise that these companies have played such a big part in shaping FOIA in Illinois.
Though it may be explained by the trend towards non-compliance by both government agencies and the courts in subsequent litigation, the lack of attention that the issue of FOIA compliance receives in Illinois is still troubling. So far in 2021, the Chicago Sun Times has only covered one FOIA case in which the pertinent records have been withheld since 2018. In all of 2020, the Sun Times only published three articles covering FOIA cases and one opinion piece about enforcement issues. The Chicago Tribune’s archives are similarly lacking coverage of FOIA cases in Illinois, which looks even more suspicious in light of their April, 2021 opinion piece that sympathized with government workers who felt overly burdened by FOIA laws. To their credit, the article does acknowledge some of the shortcomings of compliance and enforcement, but falls short of investigating the causes of these problems. This is particularly alarming because, in theory, companies like the Sun Times and Tribune should be the most invested in FOIA compliance. Publishing government information sells newspapers, but also fulfills the media’s responsibility to keep the public informed as the fourth estate. Covering stories about FOIA denials or cases would go a long way in holding the government accountable, yet the media continues to ignore the problem, leaving the public in the dark about one of the biggest challenges to our democracy.
Conclusion
On paper, Illinois’ FOIA law is one of the most progressive in the country and recent amendments, such as the record type list requirement added in 2009, demonstrate that the state is committed to transparency in theory. In practice, however, departments are neglecting to reply to even the simplest FOIA requests that the law explicitly requires them to fulfill. This problem has only been confounded by a lack of judicial enforcement and a failure to adequately cover these issues in local media.
