Thursday, May 28, 2009

FOIA rewrite passes both chambers

By Bethany Jaeger
All public bodies could be held to much higher standards when withholding documents and other information from the public. Legislation to strengthen the Illinois Freedom of Information Act and its enforcement will be sent to the governor’s desk. The House and Senate approved SB 189 with only one person voting against it.

The measure is part of a series of government reforms approved by the General Assembly in response to two consecutive governors being targeted by federal corruption charges. It’s also one area targeted by Gov. Pat Quinn’s Illinois Reform Commission.

We’ll have more about how the commission and the legislature have worked together — or not — soon. But the FOIA revisions demonstrated one area where all interested parties made compromises.

The negotiation process wasn’t exactly smooth, however. One week ago, the Illinois Press Association deemed a draft of the proposal “worse than existing law.” But the new version contained within SB 189 won “enthusiastic” support from the association.

Commissioner Hanke Gratteau said the FOIA revisions represent a “giant step forward” for transparency in government. They also would narrow the number of exemptions that allow public bodies to withhold otherwise public information, and the law would have stronger teeth with the addition of a so-called public access counselor and the ability to level civil penalties for noncompliance.

A representative of the Illinois Municipal League, however, said lawmakers would start to find out soon after the bill became law that it would place a heavy burden on local governments.

If signed into law by Quinn, a specialized lawyer would monitor and mandate the release of public information. The public access counselor is housed in the Illinois attorney general’s office, which would gain significant power by being able to subpoena information. The counselor would be able to issue binding opinions about whether public bodies, in fact, must release the information being requested.

The process also would get faster. Public bodies would have to reply to requests within five business days, as opposed to the current seven days. And if a public body denied a request, the public would have to take fewer steps and less time to appeal that denial.

“It used to be request, denial, appeal, denial. Now it’s just request, denial, and you’re ready to go,” said Don Craven, interim executive director of the Illinois Press Association. “So we shortened the process.”

Not all of the association’s recommendations made it into the final version, according to Craven. For instance, the association wanted final reports or documents prepared by consultants or independent contractors to be made public. Craven said that suggestion refers back to former Gov. George Ryan’s administration, when the state hired a private firm to issue a report about the economic impact of bringing Boeing Corp. to Chicago. The firm prepared a final report, gave it to the governor and the court held that a FOIA request was exempt because the report was “pre-decisional,” despite being the final report that guided policy, Craven said. Such reports, as well as internal staff analyses, remain exempt from the FOIA.

Some legislators expressed concern about a change to the personal private exemption. Ann Spillane, the attorney general’s chief of staff, said the reforms clarify the standard of a “clearly unwarranted invasion of privacy.” For instance, employees’ electronic time sheets — when they’re officially on the state’s clock — is public information and should be subject to the FOIA. However, if an employee clocked out to go to a doctor’s appointment, the reason for clocking out would be redacted.

Here are some other highlights of the final version, which would become law if the governor signs SB 189:
  • Courts could decide to impose a fine ranging from $2,400 to $5,000 for public bodies that intentionally failed to comply with FOIA. And if a public body waited too long to reply to a request, then it couldn’t charge a copying fee or rely on the exemption that says the request was “unduly burdensome.”
  • Courts would be required to award attorneys’ fees to individuals or entities who had to file a lawsuit to force a public body to release public information. Current law permits courts to do so but does not force them.
  • Public bodies could still redact, or black out, information from public records, but they’d still have to provide the rest of the information.
  • The bill does include a higher standard for proving a public body’s denial of a request.
  • Public bodies would have to designate specific employees to complete training about the FOIA and the Open Meetings Act.

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