FOIA: A Few Highlights of Illinois' Statute

Compare this with bills pending in the Michigan Legislature to upgrade our Freedom of Information Act (FOIA).

Bear in mind that relying on sketchy descriptions of a statute is risky.  It’s best to read the whole thing, together with related court decisions.  Among the subjects glossed over in this review are various response time limitations and FOIA requests for commercial purposes.

Illinois legislators drafted and passed a major overhaul of their FOIA in 2009, effective January 1, 2010.  In the preamble, legislators acknowledge that technology might outpace their ability to keep up, but the Act’s principles are to apply as much as possible.

Of particular interest to me, the statute defines and delineates categories of “recurrent requester.” Remember the saga of Kim Orlich and the City of Belding?  Wouldn’t happen in Illinois.

The statute applies to a long list of public bodies, including executive and legislative bodies  

(but not the General Assembly itself).  A public body may not require an information seeker to use a standard form.

Access to records is presumed open.  The burden is on the government to overcome the presumption.  Proof must be clear and convincing.

If the response of a public body to a request for records is late, no fee may be charged for the records.

There are provisions for requests that are unduly burdensome to the public body.

Requests for commercial purposes are treated separately.

The highest hourly rate that staff can charge is $10.00, but the first eight hours are free.

The statute creates the position of Public Access Counselor (PAC) under the Attorney General (AG).  The AG is empowered to subpoena public records.

The PAC may issue (ex parte) advisory opinions at the request of a public body, but such opinions are neither final nor subject to administrative review.

A person whose request for records has been denied may go directly to the circuit court for the county in which he or she resides or seek a less formal review by the PAC.

In reviewing denials of FOIA requests, the PAC makes findings of fact and conclusions of law. The PAC is required to issue an opinion within 60 days.  The opinion is binding, subject to administrative and/or circuit court appeal.

If the matter goes to circuit court, it’s heard de novo (or “anew”), which I take to mean the court can draw its own conclusions from any statements or other evidence already accepted in earlier proceedings.

The statute establishes (reaffirms?) the circuit court’s contempt powers to compel public body personnel to comply with the court’s orders.  The court is authorized to award a successful information seeker reasonable attorney fees.  Civil penalties against a public body may range from $2500 to $5000.

Illinois’ FOIA can be found at:

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=85&ChapterID=2

Michigan Legislature's circular path on outdated FOIA amendments

How do you explain the circular path to oblivion that recent proposals to amend Michigan FOIA seem to follow? 

It starts with reintroducing a bill that died in the previous session.  Lobbyists for agencies, municipalities and the like point out the unbearable burden FOIA has imposed.  After awhile, discussions and news coverage dwindle.  The bills slumber, the session ends and the bills expire.

Michigan Municipal League's Nikki Brown said recently that cities need the ability to recover the true costs of FOIA requests.  Her comments accentuate the red herring that opponents fall back on.  Our statute requires a written request, then a response after a search.  Officials decry the cost and inconvenience.

But, with a small investment in software, most public records can be made available without cost or inconvenience simply by posting them online in searchable archives as soon as they are created or acquired.

It's not cost and inconvenience that offends bureaucrats as much as the fear that open access will reveal foolishness, incompetence, wastefulness and crime.

Michigan's outmoded FOIA process needs major revisions to take advantage of new technology for open access to government records without officials playing a gatekeeper role.

South Carolina ponders FOIA court

Earlier this month, Rep. Bill Taylor of the South Carolina House of Representatives proposed the creation of a FOIA court as a part of the state's Administrative Law Court.

Taylor has three purposes in mind.  First, he wants citizens to be able to hold state offices accountable for compliance with the Freedom of Information Act.  Second, a FOIA court would give public officials an opportunity to challenge harassment by provocateurs abusing the FOIA process.  Third, a FOIA court could establish online a record of precedents to guide citizens, state officials and the court in future cases.

Another representative, Weston Newton, agreed with the concept, but questioned the additional cost of creating a new branch of the Administrative Law Court.  Also, he expressed concern about the inconvenience to citizens who would have to travel to the state capitol for court proceedings.

Newton suggested that it might be preferable for the legislature to design an expedited procedure with a reduced filing fee for application in the county circuit courts, instead of the ad law court. 

http://savannahnow.com/bluffton-news/2013-03-09/foia-court-proposed-lawmakers#.UUxUgjeRcYg

Michigan should consider a similar amendment to its Freedom of Information Act as an intermediate step for improvement of disclosure of public records.  Limited jurisdiction to hear summary proceedings to compel disclosure of government records could be conferred on Michigan's administrative law judges.

Proceedings would be initiated within 60 days of a denial (in whole or part) by filing a simple form (who, what, when, where) reiterating the original request for records, with copies of all correspondence up to that point attached.  The public official who denied the original request would have 30 days to file a statement indicating any dispute in facts.

Paperwork from both parties would be submitted by mail.  No personal appearances would be permitted unless both parties agreed.  Either party could have the paperwork prepared and submitted by legal counsel if they wished.

The ad law judge would have 30 days to rule.  If the ruling was in favor of the petitioner (in whole or part), the public official would be ordered to furnish the requested record and pay the petitioner $500, both within 30 days of the date of the order.

If the ad law judge's decision is against the petitioner in whole or part, the petitioner would have the right to file an appeal in the circuit court for his or her county of residence (with a nominal fee).

If the public official chose to contest the matter, that official's agency or department would be required to pay monthly a reasonable attorney fee, as determined by the court, to enable the petitioner/appellant to have legal counsel.

If the petitioner/appellant prevailed in circuit court in whole or part, the public official would be ordered to furnish the requested record, pay the petitioner $5000 and pay court costs as determined by the judge.

Until the Michigan Legislature requires state offices to post all records in searchable archives online from the moment those records are created or received, action like that described above is necessary to assure compliance with the act in its present (outdated) form.

"Sunshine" Week and the prospect for FOIA reform

Here we are again in "Sunshine" Week, more than a year after a bill was filed in the Michigan House to add the Michigan Legislature to the list of state government functions subject to the state's ancient Freedom of Information Act.  That bill expired in December at the end of the previous legislative term.

Another bill, designed to encourage more prompt government responses to FOIA requests and establish lower, uniform retrieval and copying costs, was filed last September.  It, too, died at the end of the last legislative term, but was resurrected by Rep. Mike Shirkey at the beginning of the new term in January.  Shirkey's bill has had the active support of the Michigan Press Association.

The flaw in both of these proposals to amend Michigan FOIA is that they are based on the old FOIA model, which requires a request to a government unit's "FOIA Coordinator" in order to obtain public information, subjecting the request to the scrutiny,  approval and convenience of personnel in that particular unit.

Genuine reform, now being implemented to various degrees in most federal agencies, requires that non-exempt public information be posted on searchable websites (often referred to as "reading rooms") by the various government offices as soon as the information is created or acquired.  In this process, government staff do not play gatekeeper; nor are they distracted from other duties in order to conduct a search.


This proactive approach for public access to government records should be adopted by the states.