Rewrite of Freedom of Information Act would modernize law, close loopholes

Adriana Colindres

Seeking government documents through Illinois' open-records law can be a slow, frustrating and fruitless experience for people, but a proposed rewrite of the Freedom of Information Act aims to change that.

Attorney General Lisa Madigan on Tuesday released an updated version of the FOIA that attempts to modernize the existing law, make it less unwieldy and close many of its numerous loopholes.

The proposal also calls for imposing fines of $100 to $1,000 against governmental bodies that fail to comply with open-records requests. Individuals who violate the FOIA could be convicted of a Class C misdemeanor, generally punishable by up to 30 days in jail.

In addition, people who successfully sue in court for the release of public records would be entitled to recovery of attorneys' fees.

The FOIA measure, still going through revisions, eventually is to appear in House Bill 1370. 

It's part of a two-bill package on government transparency that Madigan is pushing. The other proposal, to be inserted in House Bill 4165, grants additional authority to the public-access counselor in the attorney general's office.

"It's the impact of the public-access counselor that will really drive these (FOIA) reforms home," said Cara Smith, Madigan's deputy chief of staff.

For example, the public-access counselor would have to give the go-ahead before a governmental unit could reject an FOIA request because it would be an "unwarranted invasion of personal privacy," Smith said. That phrase sometimes has been broadly applied, resulting in the denial of records that should have been made public, she said.

Enhancing the powers of the public access counselor definitely would solve many of the problems with FOIA, said House Majority Leader Barbara Flynn Currie, who is sponsoring both House bills.

"It's my view that a lot of the problems with the Freedom of Information Act are not the way it's written, but that people, particularly people at the local governmental level, in small units of government, don't understand what their responsibilities are under the act," Currie said.

Springfield attorney Don Craven, who is general counsel and interim executive director of the Illinois Press Association, said the FOIA rewrite makes "some significant changes for the better."

It requires governmental bodies to respond to FOIA requests within five working days, rather than the seven working days now permitted.

If a public body doesn't respond within five days, it generally would give up the right to claim later that the requested information cannot be released because it falls within one of the act's exemptions. The only exception would be if the requested information constitutes an unwarranted invasion of personal privacy.

Craven said it's common for FOIA requests "to simply be ignored in many instances," but the revision would put the burden on governments to respond.

Madigan's FOIA proposal sets up a longer timetable of 21 days for governments to deal with FOIA requests made for "commercial purpose." Those requests generally take the form of a private business seeking large amounts of information in the hopes of using it to make money.

Another part of the legislation requires governmental bodies to designate one or more individuals as Freedom of Information officers to ensure that FOIA requests get handled properly.

The FOIA rewrite also eliminates an appeal process that nearly always fails anyway, Craven said. Under the current FOIA, if a records request gets denied, the next step is to appeal to the head of the public body - often, a mayor. That no longer would be the case.

Roger Huebner, general counsel for the Illinois Municipal League, thinks that getting rid of the appeal process would be a mistake.

People making FOIA requests "wouldn't be able to have a person at the local level take a second look at it," said Huebner, whose organization represents local governments. "It makes it a legal proceeding pretty quickly."

Huebner disagreed with Craven's view that the appeal process usually fails. Huebner said local governmental lawyers tell him that FOIA disputes often get worked out at the local level, but those resolutions fly under the radar and get little attention.

"There's a lot of good in the bill," he said, but it should be more "layman-friendly" and less punitive.

The bill's inclusion of criminal penalties against FOIA violators means it will be difficult for government units to find people who are willing to serve as FOI officers, Huebner said.

"I sure don't want them going to jail because they made a mistake," he said.

The FOIA rewrite is winning praise from Terry Pastika of the Elmhurst-based Citizen Advocacy Center. Earlier this year, she told a legislative committee about the problems her organization has encountered with the existing act. She complained then about the act's lack of penalties and its vagueness concerning the cost of obtaining copies of government records.

Governments sometimes charge such high fees that they amount to "a defacto denial" of a records request, Pastika said.

The rewrite spells out how much governments may charge to make paper copies. The first 25 pages are free, and any remaining pages are capped at 15 cents a page unless the government body conducts a cost study showing that a higher price is warranted.

Craven said the proposal also caps how much governments may charge for copies of records in electronic form. If those records were produced on a compact disc, for example, the cost of reproduction would be the cost of the CD.

An updated Freedom of Information Act would "make open government much more a reality," Pastika said. But officials will have to be prepared to punish governmental units or individuals if they fail to follow it.

"Effective implementation," she said, "means actual usage of the penalties that are going to be on the books."

Adriana Colindres can be reached at (217)782-6292 or adriana.colindres@sj-r.com

WHAT'S DIFFERENT?

Here are some of the changes in the proposed Freedom of Information Act rewrite, though it's not yet in final form:

- Governmental bodies would have five working days to respond to FOIA requests. They'd have 21 working days to respond to FOIA requests made for commercial purposes.

The existing FOI Act sets a time frame of seven working days for all requests.

- Governmental bodies that "willfully and intentionally" fail to comply with an open-records request could be fined $100 to $1,000.

- Individuals who "knowingly and willfully" violate the FOI Act could be found guilty of a Class C misdemeanor, generally punishable by up to 30 days in jail and a maximum fine of $1,500.

- Attorneys' fees would be awarded to someone who successfully sues in court for information under the FOI Act. Attorneys' fees also could be awarded to a governmental body if a judge decides an FOIA lawsuit is "frivolous."

- Each public body would have to designate one or more Freedom of Information officers to ensure the public body response to FOIA requests in a timely manner.