Illinois revises transparency laws on heels of scandal

From the Fall 2009 issue of The News Media & The Law, page 18.

After last year’s scandal and impeachment of the state’s former governor, Illinois Gov. Patrick Quinn signed into law revisions to the state’s Freedom of Information and Open Meetings acts, joining South Dakota, Pennsylvania and Louisiana in overhauling open records laws in recent years.

“We’ve been talking to our friends in the legislature for a long time,” said Donald Craven, the interim director for the Illinois Press Association. “But clearly, the end of the Blagojevich era, and certainly the way that it ended, demonstrated the need for this kind of re-write.”

The bill, which is now part of Public Act 096-0542, established presumed transparency, shortened the response time to public records requests to five business days, heightened scrutiny when privacy exemptions are drafted, limited the charges for copying and attorney fees and laid out new requirements that govern the production of electronic records. In addition, a public access counselor will be appointed who is authorized to oversee enforcement issues and all public bodies will designate an employee who will act as its FOIA officer and attend annual trainings.

Advocates of the revisions lauded the bill’s passage as an important step in the state’s long journey towards increasing transparency. But not everyone is so optimistic. “It improves some things and leaves some things woefully inadequate,” said David Kidwell, a state government reporter for the Chicago Tribune, who regularly deals with public records.

Since January, Attorney General Lisa Madigan, who ran in part on a transparency platform, worked with the Illinois Press Association, the Illinois Campaign for Political Reform, the Better Government Association and the Citizen Advocacy Center to push the bill through the state legislature. Craven explained that the major obstacles proponents faced included government lobbying groups and school districts that voiced concerns about costs of producing public records and the impact on staff time. Craven labeled these “the usual ‘the sky is falling if you give us access’” concerns.

Quinn signed Senate Bill 189 on Aug. 17 after the revisions had languished on his desk for several months since passing the Illinois Senate in a 54-0 vote on April 29 and the House in a 116-0 vote on May 27. The state’s attorneys had urged Quinn to water down the bill, but the governor eventually elected to sign the bill as-is.

“I think the Freedom of Information Act is indispensable,” Quinn said in a statement. “It’s imperative to have a strong law that allows the public, the people, the heart and soul of Illinois, to make sure they know that their government is doing the right thing.”

Madigan emphasized at a press conference the heightened standard of enforceability that the bill will bring to the FOIA process. “The public access counselor will become a permanent position within the attorney general’s office with the legal authority to issue binding opinions,” Madigan said. “In addition, this law will finally put in place penalties, so that if a public body willfully, intentionally refuses to follow the law, a judge will have the ability to impose a $2,500 to $5,000 fine.”

While the public access counselor is not a new addition to the attorney general’s office, the new legislation mandates the position rather than making the position optional. Currently the position is unfilled.

But Kidwell points out that “what it doesn’t do is make anything public that wasn’t public before,” he said. “There are [also] still huge, sweeping exemptions that can and probably will be enforced.”

While other states permit the public to access work product, in Illinois preliminary drafts, memorandum, notes and all other works that can be deemed work product are exempt from public scrutiny. Kidwell is also doubtful about the revised privacy exemptions, insisting that the law remains vague and doesn’t define what’s private, forcing any clarification to be litigated.

Kidwell is also concerned about the power given to the attorney general. “Whoever is sitting in that chair is going to be the person who decides what is a public record and what’s not under the new law,” he said.

While media advocates may disagree on the effectiveness of the new legislation, all agree that it is a step in the right direction — and that more needs to be done.

“This new law puts into place a much stronger freedom of information act than existed in Illinois before,” Craven said. “Having said that . . . you cannot legislate people into doing the right things for the right reason . . . if they want to snub their nose at this law they can; so yes, we have a long way to go.”