Need for FOIA denial records is news to officials
When government says “no” to a records request in Illinois, the denial document is a slam-dunk public record. State law says so, and in plain English:
"Copies of all notices of denial shall be retained by each public body in a single central office file that is open to the public and indexed according to the type of exemption asserted and, to the extent feasible, according to the types of records requested."
But a law that’s been part of the state Freedom of Information Act since the 1980s comes as news to some state officials who have responsibility for releasing information to the public. When The State Journal-Register asked 30 state and local agencies for denial files, answers ranged from “come on over” to “we don’t keep files that way” to no answer at all.
Some officials questioned whether the public even has a right to see the files.
“I don’t know if we actually keep those particular records,” said Jonathan England, an attorney with the state Department of Emergency Management. “I don’t honestly know if our logs are FOIA-able. There might be an exemption in the law. I’d have to check. I think FOIA was never intended to give a listing of those who actually request FOIAs.”
When a reporter read the statute to England that says FOIA denial files must be kept in a single place accessible to the public, the lawyer said he’d work on it. But it wouldn’t happen right away.
“It’ll take some time,” England said. “Send us a formal request. You can fax it. It has to be on letterhead and signed by you. Be as specific as possible.”
The Freedom of Information Act doesn’t require letterhead or signatures. The newspaper didn’t follow up because forcing government officials to spend time and taxpayer money complying with a law that says the files should be compiled and ready for inspection wasn’t the point of the exercise. Nor did the paper send additional requests when the first e-mailed request to see a FOIA denial file wasn’t answered.
Late or no responses
Several agencies, including the governor’s office, did not respond to requests. Others took a week or more to provide the records — the Department of Corrections, for example, e-mailed a spreadsheet of its denials two weeks after being asked. The Environmental Protection Agency, the Governor’s Office of Management and Budget and the Department of Agriculture gave themselves seven-day extensions to respond.
That shouldn’t happen, according to the state attorney general’s office. No one should have to wait seven days to see a FOIA denial file, said Robyn Ziegler, spokeswoman for Attorney General Lisa Madigan. Written requests also shouldn’t be required, she said.
“The statutory language … lends itself to the interpretation that these notices of denial should be readily available, and thus a FOIA request for the same should not be necessary,” Ziegler said.
The simplest answer to the newspaper’s request came from the Springfield School District.
“I don’t have a denial file,” wrote Julie Hammers, school board secretary, in an e-mailed response to the newspaper’s e-mailed request. “As far as I can find, the district has never denied a FOIA request.”
Other government agencies, however, have denied plenty.
The state comptroller’s office in 2004 refused a journalist’s request for a copy of a federal subpoena, much like former Gov. Rod Blagojevich, who was successfully sued by open-government advocates for refusing to release subpoenas. In 2007, after the attorney general’s office said that subpoenas are public records, the comptroller’s office granted a request for copies of subpoenas made by a former Blagojevich campaign worker.
State worker time sheets
State Comptroller Dan Hynes has a reputation for openness, but his office also denied requests for employee time sheets and the names of businesses that owed money to the state, the amounts owed and the dates debts were incurred. The requests came in 2003 from campaign workers for Blair Hull, who was running against Hynes in the Democratic primary for U.S. Senate. Hynes personally handled both cases, denying appeals after the requesters asked for reconsideration.
Hynes spokeswoman Carol Knowles said she believes the time sheets were eventually released after employees signed waivers.
Cara Smith, deputy chief of staff in the attorney general’s office, said it’s not clear whether records relating to debts can be withheld. Times heets are a different matter.
“Time sheets go right to the core of duties of public employees and are certainly subject to FOIA,” Smith said.
Richard Means, a Chicago attorney who handled the FOIA appeals for the Hull campaign, said he doesn’t recall the request for records on debtors, but the campaign did want to know whether the comptroller was treating political friends and foes equally when attempting to collect debts. Means said the campaign asked for time sheets to determine whether government employees were doing political work on state time.
Hynes claimed time sheets that show hours worked by government workers are part of personnel files and therefore exempt from disclosure. Means said such an argument is ridiculous.
“That’s like saying if you put a ham sandwich in with a ham sandwich, it’s no longer a ham sandwich, it’s something else,” Means said. “It’s just silly that you can have a rule that something that is an exhibition of whether a public employee is doing his job — the amount of time he’s showing up for work — is in some way private.”
Not political games
Means said FOIA requests aren’t political games.
“When we asked most of these questions, we’re not trying to play a gotcha game,” Means said. “We’re telegraphing the reason why we asked these questions. If we don’t really catch them at it, we might get them to correct the problem, and the public wins either way.”
Hynes isn’t the only official who has denied a request for time sheets. Former state Treasurer Judy Baar Topinka’s staff refused to grant a 2005 request for time sheets from a Springfield woman. However, Topinka’s office granted a request for time sheets made by the Chicago Tribune two years earlier, according to files in the treasurer’s office.
Some agencies refuse to release the names of people or entities that made FOIA requests. The Department of Human Services denied a request for the agency’s FOIA log for May 2008, saying that releasing the names of individuals and entities making records requests constitutes an invasion of privacy. It’s not clear who made the request because the requester’s name was blacked out in the denial file.
Agencies vary widely in how they supplied denial files. A handful e-mailed or faxed logs showing the names of requesters, a synopsis of what was requested and the exemption in the Freedom of Information Act that was cited in denying requests. The secretary of state photocopied letters and e-mails denying requests and gave them to a reporter. Several agencies assigned staff members to sit with a reporter who looked through files.
In the case of the Office of State Fire Marshal, the reporter was watched by a lawyer, the agency spokeswoman and the fire marshal’s chief of staff.
“Just in case you had questions,” said Januari Smith, spokeswoman for the fire marshal’s office.
Bruce Rushton can be reached email@example.com.