Illinois Senate Minority Leader Christine Radogno has her job today in part because of the roadblocks that citizens can sometimes face when using the state’s Freedom of Information Act (FOIA), which allows access to public records to squeeze information out of a government entity.
In the mid-1980s, before Radogno had begun a political career, the Illinois village she lived in was looking to promote development through a special tax district. She read about the plan in the local paper. It also called for moving a fire station, which piqued her interest. “As I dug more into it, I had a lot of questions. … I started to go to meetings and asked questions and was always treated a little bit patronizingly. And then I realized I could actually go and ask for documents, and then I started to do that.”
She says, “They were not very friendly about it.” Radogno says in the end she got the information she sought but had to be very persistent in her pursuit, submitting about 50 requests. She noted that none of the officials she butted heads with then are still working in the municipality today.
“Eventually I got everything, and it wasn’t a horrible experience. But I can easily see from that experience how you can get a government body to sort of just close ranks around anyone who wants to question them.” Radogno says the experience inspired her to get involved in government, and she went on to become a member of the LaGrange Village Board in 1989.
However, Radogno says there are cases when small governments are inundated with record requests, from businesses seeking public information for marketing purposes to individuals attempting to harass municipalities rather than expose corruption or find out more about local issues. “I absolutely agree we need to find some sort of relief valve for those communities.”
Less than a year after Gov. Pat Quinn signed FOIA reforms into law, legislators voted to exempt public employee evaluations from being available to the public. The move had enough support in the legislature to override a veto from Quinn that would have seriously limited the exemption. This legislative session, lawmakers are debating what information Illinois residents can expect to remain private. Some are also searching for what they call a middle ground between keeping government open and having realistic expectations of local municipalities that in some cases are understaffed and strapped for resources after the recent economic downturn.
The General Assembly reworked Illinois’ Freedom of Information Act with an eye toward reform after impeaching former Gov. Rod Blagojevich and removing him from office. The FOIA changes came along with other attempts at cleaning up a government — such as setting limits on campaign contributions — that had become mired in political scandal. The changes required public bodies to respond to requests for information in five days instead of the previous seven-day requirement. They limited what could be exempted from release and set a higher standard of proof for denials of requests.
Public bodies must designate an officer who handles FOIA requests, and that person must receive training on the state’s FOIA law as well as the Open Meetings Act, which sets out requirements for governmental bodies to hold meetings that are accessible to the public. The law also created the position of public access counselor in the attorney general’s office. The access counselor has subpoena power and can issue binding decisions in FOIA disputes.
The changes were lauded by many as a positive step toward increased transparency in a state that had earned a reputation for corruption and government secrecy. David Yepsen, director of the Paul Simon Public Policy Institute, says that Illinois’ public sector needed to let in some sunlight to rehabilitate its tarnished reputation. “Governments in Illinois are held in pretty low regard, and they need to bend over backwards to restore credibility.”
However, local government leaders from cities, villages and counties warned when Quinn signed the measure in the summer of 2009 that the new requirements were overly burdensome and would lead to confusion, inability to meet requests and, in perhaps the most dire admonition, collapse of the system through which the public can demand information of its government. “The consensus outcome predicted by many public officials who actually deal with this law at the countertop transaction level is that this system is likely to crumble under its own weight. One thing is certain — the bill makes FOIA a legal thicket that will overwhelm the lay people who are charged with dealing with FOIA requests on a day-to-day basis,” Larry Frang, executive director of the Illinois Municipal League, wrote in a letter to Quinn after lawmakers approved the reform legislation.
Public bodies can deny information requests for a number of reasons, including those that cause an “unwarranted invasion of personal privacy,” “endanger the life or physical safety of law enforcement or corrections personnel or any other person,” or “unduly burden public resources.” The debate over defining those exemptions is at the core of several bills being considered by lawmakers that would roll back some FOIA requirements.
The Illinois State Police denied a request by the Associated Press for information from Firearm Owner’s Identification (FOID) cards that Illinois residents must have to legally own a gun in the state. The state police argued that releasing the information was an invasion of privacy and could threaten the safety of FOID cardholders.
Attorney General Lisa Madigan’s office disagreed, telling the state police they must respond to the request, which sought cardholders’ names and the expiration dates of their permits, but no personal information, such as addresses or mental health records. Assistant Public Access Counselor Matthew Rogina wrote in a letter to the state police that the requests did not cross the line on privacy or personal safety and that it is in the public interest to allow access to the FOID registry to monitor the system and ensure that it is being administered properly.
Some lawmakers disagree with Rogina’s assessment and the Illinois House passed a bill that would exempt the FOID records of at least 1.3 million Illinois residents registered to own a gun in the state from FOIA requests. Opponents argue that releasing information on who does or does not own guns in the state could be a potential boon to criminals seeking to rob the homes of the unarmed or those looking to steal guns. They say public release of the FOID list may cause some gun owners to skip registration altogether.
“I believe that the attorney general’s opinion is against the public safety of the state, it puts more illegal guns on the street and it would lead to more straw purchases and noncompliance,” Sen. Kirk Dillard, a Hinsdale Republican and sponsor of a similar?bill that would exempt FOID information, told Illinois Issues a week after the letter from Madigan’s office made headlines.
“You have to make a pretty compelling reasoned case for why something like that needs to be secret,” says Yepsen. He adds that security has become a greater concern for public bodies since the September 11, 2001, terrorist attacks, and information that had been public, such as floor plans for security sensitive buildings, may have to be shielded. “This is not something that you set in stone forever. So I think you have to be willing to hear arguments.” But he says that other licensing systems administered by the state are open to review, and the only way the public can know whether the state police are keeping tabs on which residents are eligible for gun ownership is by making some FOID information available. “You have to be able to see how it works in order to monitor it.”
Other lawmakers are pushing changes to FOIA because they say local governments are finding it difficult to meet the demands placed on them as they face strained budgets, low staffing levels and overdue payments from the state. Rep. Jim Durkin, a Western Springs Republican, is sponsoring a bill that would allow public entities to skip making hard copies of information, as long as they provide it online. “It’s strictly a money-saving issue,” he says. “I think that [people requesting documents that are available online] should be told: ‘This is accessible. Go to a computer, and you can download and print it. Good luck.’”
Durkin says that the move would encourage public bodies to share more information online and allow citizens to get documents instantly instead of having to wait for them to be compiled and copied. “I understand that not everyone has access to computers but more and more people do. I would say more people have computers than don’t have computers.”
Under another bill, if any individual made more than 48 requests in a year or more than five in a single week to the same public body, any subsequent requests would be labeled as vexatious, and the body would have 21 days to respond. Requests from members of the media would be exempt under the proposal. The law currently requires a response within five days. The bill would also prohibit the public access counselor from weighing in on any vexatious requests.
Sen. Edward Maloney says he is sponsoring the bill after receiving complaints from officials serving in small governments that were being inundated with requests that required the production of a large number of copies. Maloney, a Democrat from Chicago, says in one case, a cubic foot of paper was never retrieved by the person who made the request. According to supporters of the measure, many of the requests are motivated by political grudges or made by businesses looking to find new customers, such as companies that sell construction materials seeking records of building permits.
“The way it’s set up now, any individual can basically use this law as a weapon against a municipality if they so choose. Some of these individuals are past political candidates. Some of them are just, I don’t know, ticked off about something. And that’s all it takes,” says Patrick Kitching, mayor of southwest suburban Alsip. “This is wrecking our budget among other things. We’re a small- to medium-size village. We don’t have anybody sitting around on their hands that can do this. My deputy clerk has threatened to quit on multiple occasions.”
David Morrison, deputy director of the Illinois Campaign for Political Reform, says that the motivation of the request should have no bearing on whether it is filled. He says local governments already have the tools to avoid overly burdensome appeals for information by asking the requester to narrow the focus of the demand, denying it under the parameters set out by the law or appealing to the public access counselor. “I found it hard to believe that these requests are so onerous and so difficult that we need the change in the law that they’re pushing for.”
Lawmakers are also considering allowing governments seven days, the period given before the recent reform law, instead of five days to respond to a request and letting them charge more for copies of documents. Hanke Gratteau, a member of Quinn’s Illinois Reform Commission and a former investigative reporter and managing editor for the Chicago Tribune, argues that public bodies often don’t respond on time to requests, so no matter what the deadline is in law, in practice it is longer. “Anyone who has tried to use the FOIA to obtain documents knows that seven days isn’t really seven days. It’s far longer than that.”
Kent Redfield, an emeritus professor at the University of Illinois Springfield and director of the Sunshine Project, says proponents of legislation to limit FOIA are using budget concerns as a political gimmick. “It’s strategy…[to] link your issue to whatever is a major public policy concern. So this session, everything has budget implications.” He says while the proposed changes may save some money, it would not be enough to save struggling local budgets. Gratteau says openness is a vital service required of government, not a fringe benefit that can be trimmed when money is tight. “[Providing] open and easy access to information that rightfully belongs to the public is part of the job. It’s not an added luxury.”
Redfield adds that there is no way to strike a perfect balance in which well-intended watchdogs get what information they seek while governments avoid requests from those who may be seeking political revenge or acting with some other perceived time-wasting motive. “Ultimately, you have to come down on one side or the other. Do the documents or the process exist to serve the public or do they exist to serve the politicians and the bureaucrats? … You can’t have it both ways. You either have to have a presumption in favor of transparency and the public interest or a presumption to the convenience of local governments.”
Illinois Issues, May 2011
