The Illinois Freedom of Information Act is a tool not just for the press but also for the public. Unfortunately, it serves neither constituency well. Instead, we in the media as well as those in the general public are forced to use a notoriously weak FOIA law to attempt to gain access to public records. By the same token, many Illinois public officials, knowing full well the weakness of Illinois' public records law, have complete disregard for the concept of public records. Records requests are met with cumbersome and prohibitive delays, gaping and subjective exemptions, and very few consequences to the numerous violations of an ill-defined law.
The overriding problem with Illinois' Freedom of Information Act is the fundamental and fatal idea that authority over government records rests first with their custodians and not their owners. This is backward, and any rewrite of public records law that does not reverse this basic conundrum is meaningless. There should be an overriding presumption for immediate access to public records, extremely specific and limited exemptions to certain pieces of information in those records, a strict policy for the keeping of records in a manner oriented toward disclosure, and stiff penalties for violators. The public body must carry the burden of overcoming this presumption of openness, and, if the matter goes to litigation, the public body should be required to carry its burden by clear and convincing evidence.
Mayor Daley received an email on his office computer from his personal physician. The contents of the email may be exempt. The name of the doctor may be exempt. But the printed document, with the exempt information redacted, remains public. This distinction is important because it puts the burden on the public official to prove every piece of information is exempt. It also presumes that all records must be produced, making it more difficult for public officials to withhold them.
Failure on any of these fronts makes progress on any other less meaningful. There has been much talk in the wake of Gov. Rod Blagojevich's arrest about how to deal with Illinois' reputation as a corrupt state. The most meaningful reform would be to throw a spotlight on the Illinois government and take it out of its well-entrenched secrecy, thus creating a citizenry more armed and better equipped to be watchdogs of their own tax money.
I. Structural Problems in the Law
The structural problems in Illinois' FOIA fall into two broad categories. First, the exemptions that allow officials to withhold public records have become hopelessly distended. Second, public officials typically face few, if any, ramifications from failure to comply with FOIA and have little incentive to do so.
A. Overbroad and Numerous Exemptions.
Public records are presumed available to the public unless they fall under one of the exemptions listed in Section 7 of the FOIA. See 5 ILCS 140/3(a). Not surprisingly, the exemptions have grown considerably over the years. Now, the exemptions under FOIA suffer from two fundamental problems, On one hand, many exemptions are too broad, which leads public officials to err on the side of withholding what should be publicly available records. On the other hand, many exemptions are too discrete, which forces the public records requester to navigate a bewildering array of 44 categories of exemptions. The federal Freedom of Information Act, by contrast, has only nine categories of exemptions. See 5 USC § 552(b). Among the more problematic catch-all exemptions are the unwarranted invasion of personal privacy exemption, the investigatory exemption, the "deliberative process" exemption, and the exemption from producing records when doing so would be unduly burdensome.
Under the personal privacy exemption, 5 ILCS 140/7(b), public records are exempt from disclosure if disclosure of the information "would constitute a clearly unwarranted invasion of personal privacy." Courts have come to view the personal privacy exemption as a "per se" exemption. This means that, in the view of Illinois courts, if the information relates to personal privacy at all its disclosure any disclosure would be "clearly unwarranted." In addition, the statute provides that information in personnel files of public employees is exempt. 5 ILCS 104/7(b)(ii). Putting aside whether such information should even be exempt, public officials can improperly attempt to cloak virtually anything as exempt by simply dumping it in a personnel file. The privacy exemption (as well as other aspects of FOIA) is inherently subjective and it changes depending on the whim of the public official dealing with the request. If the vague, sweeping exemption were changed so that all records are public and only certain, specific information is exempt (i.e., medical information, Social Security numbers) this problem could be minimized.
Certain investigatory process records are exempt under FOIA. 5 ILCS 140/7(c). Obviously, the administration of justice requires that certain information contained in police records pertaining to ongoing investigations be exempt from public scrutiny. However, public officials are now all too willing to avail themselves of an exemption that should be narrowly interpreted. In addition, police now are allowed to "re-open" closed cases following public records requests specifically to claim the "ongoing investigation" exemption. There have also been numerous examples of public records that would have been publicly available but have been withheld just because they have been subpoenaed as part of a criminal investigation. This practice should not be permissible under FOIA.
The "deliberative process" exemption also potentially opens a gaping loophole in FOIA. 5 ILCS 140/7(f). Under this exemption, "[p]reliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated . . . ." Although public servants should have a reasonable degree of privacy at their desks, the deliberative process exemption is too broad and vague. Presumably, these types of records are precisely those to which the public would most want access because they reflect the inner workings of government. In addition, this exemption is not lifted once a decision has been reached or tabled--this preliminary analyses remain sealed from public view. This issue has been successfully addressed in other jurisdictions by ruling that the deliberative process exemption cannot be claimed if the product has been disseminated in any way. Once a record or memo is exchanged with another public official, it is public.
Public bodies can also refuse to produce records if they believe doing so would be "unduly burdensome." 5 ILCS 140/3(f). Undue burden becomes a self fulfilling prophesy. Public bodies should be required to keep records in such a way that they are readily available to their owners, i.e., the public. Too often, Tribune reporters hear the excuse, "but the records aren't kept that way." The public body, however, should not be allowed to charge fees or deny records because it has maintained the records in such a way as to make them difficult to retrieve. If there are pieces of information known to be exempt, Social Security numbers for instance, then public records should be maintained in such a way that such information is easily redacted. Otherwise, public officials will litter public records with Social Security numbers in order to make the claim that our requests are "unduly burdensome."
Finally, FOIA contains a laundry list of picayune exemptions (e.g., information exempted from disclosure under the Radon Act, or the Illinois Prepaid Tuition Act or the Bi-State Transit Safety Act). These exemptions make wading through the Illinois FOIA a daunting task for a reporter or lawyer and make a law that should be a model of clarity and a tool for citizens positively opaque to the typical citizen. FOIA should be slimmed down considerably along the lines of its federal counterpart.
B. Inadequate Procedures and Penalties under the Law
The exceedingly loose enforcement protocol under the FOIA provides public agencies too much latitude to deny or delay requests with little concern for the ramifications. In our experience, Illinois bureaucracies take the maximum time on nearly every FOIA request. Under FOIA, the public agency has seven working days in which to respond to a request. 5 ILCS 140/3(c). The public body can request a seven business day extension of that date, 5 ILCS 140/3(d), and then have seven days to respond to an appeal. 5 ILCS 140/10. This timeframe should be truncated, so FOIA requests do not drag on for weeks. As it is, the public bodies take this time (and sometimes more) even for the most innocuous and obviously public requests and even in cases where the records are ultimately denied. If the public body delays, there is no provision for fines or administrative penalties. The requester's only recourse is to file a lawsuit--failure to respond within the requisite time period is deemed a denial. 5 ILCS 140/3(c). FOIA needs some mechanism between the two extremes of no penalty whatsoever on the one hand and a lawsuit on the other to incentivize public bodies to comply with the required deadlines.
Lawsuits can be expensive, and fee-shifting under FOIA is merely discretionary. If a requester "substantially prevails" on a request for records "the court may award such person reasonable attorneys' fees and costs." 735 ILCS 140/11(i) (emphasis added). We believe the discretionary may should become a mandatory shall and that fees should be awarded if the requester receives any public records through the lawsuit. A public body will be much more likely to produce the requested records if it faces the mandatory sanction of paying the requester's attorneys' fees. In addition, a requester is more likely to take the public body to court if the requester has a chance of recovering attorneys' fees. A court should also have the power, if it finds the public body intentionally and willfully failed to comply with the request, to fine the public body. Moreover, the court should be entitled to consider whether the public body is a repeat FOIA offender and increase the penalty based on evidence of past misdeeds.
Putting some teeth into FOIA's enforcement provisions will send a message statewide that the presumption stands with the taxpayer who owns the records instead of the agencies that store them. The withholding of public records in bad faith will lead to punishments for the public bodies that fail to follow their obligations under the law and, we hope, lead to a culture of compliance.
II. Other Suggested Reforms
As should be clear from the above, problems with FOIA extend beyond the law to the mindset of those who must follow (or ignore) the law. No sweeping reform of public records law can work without also addressing the issue of open government. Otherwise, public officials will be encouraged to more often keep things from the public record by dealing with one another verbally. For instance, a public records law must also provide for the advertisement of public meetings and provide sanctions against any two elected officials discussing in private anything that might conceivably come before them for a vote.
In addition, public officials can often avoid public scrutiny by contracting public services with private and quasi-private companies. Our governmental functions are increasingly outsourced. Any reform of public records law must address this by clearly stating that any services provided by private corporations at the expense of taxpayers will be subject to public records law.
Another gambit used by public officials in Illinois and elsewhere is to attempt to charge outrageous sums for retrieval and production of electronically maintained records. This is particularly problematic because public records are increasingly stored only electronically. If a requester seeks a record in electronic format, the public body should, if possible, produce it in the manner requested and should not be allowed to charge anything more than the cost of the recording medium.
The Illinois Attorney General should annually publish an Open Government manual for use by citizens in search of public records. It should include the public records law, and what it means in layman's terms. It should clearly define what is public and what is not public. There should be no ambiguity or subjectivity: This record is public, this piece of information is not. It should be designed for citizens to wield as a weapon in disputes with records custodians.
In addition, government personnel can take greater ownership of FOIA responsibilities and should have the tools to do their jobs. Each public body should appoint a Freedom of Information Officer and that officer should receive training and be subject to highly specific protocols for dealing with requests for public records. This will lead to greater accountability.
Ultimately, changing and improving access to public records in Illinois will require a legal and cultural transformation. The legal changes can help drive the cultural changes, however, by vividly illustrating to Illinois public officials that the people demand and deserve better access to the public records they paid for and own.