Survey shows no improvement in FOIA compliance

By BRUCE RUSHTON
STAFF WRITER
Published Thursday, April 26, 2007

STUDY AT A GLANCE

Eight years ago, Edwards County Sheriff Oren Smith wadded up a copy of the state Freedom of Information Act and tossed it away.

“I don’t have to tell you nothing if you don’t tell me nothing,” he told a reporter seeking a copy of the county jail log, which documents who is in jail on a particular day and why. “I wouldn’t come back here, neither.”

The sheriff’s response wasn’t unusual.

In 1999, journalists from 15 media organizations visited every county in the state, asking 605 clerks, school superintendents and sheriffs for routine records such as jail logs, travel vouchers and meeting minutes. Nearly two-thirds of the journalists walked away empty-handed.

Even after allowing officials time to seek legal advice or compile the requested information, more than 25 percent of the governments contacted never produced the requested records.

“That’s been stuck in my mind for seven or eight years,” said Jay Stewart, executive director of the Better Government Association in Chicago, a non-partisan government watchdog group. “I always wanted to do something like that.”

Last summer, a BGA survey showed no improvement in compliance with the Freedom of Information Act. In fact, compliance may be worse than it was in 1999.

A BGA intern asked 408 school districts, counties, cities and other government jurisdictions for phone records and lists of employees, including dates of hire, job titles and salaries. The request for employee lists, contained in letters that did not identify the BGA as the entity seeking the information, was lifted almost word for word from the law that says such records are public.

Just 38 percent of the governments surveyed complied with the law. Of the 62 percent that failed the test, nearly 40 percent didn’t even acknowledge receiving the requests.

“No phone call, no letter, no fax—nothing,” Stewart said. “It was fairly across-the-board poor performance.”

Similar audits have been conducted, usually by news media, in at least a dozen states during the past two years. Although methodologies varied, officials in California, Kentucky, Connecticut, Florida, Indiana, Iowa, New York, Ohio, Oregon, Rhode Island and Tennessee were all more likely to produce public records on request than officials in Illinois. In California, for example, 37 of 86 agencies produced basic financial records upon request. In New York, nearly 80 percent of 116 agencies surveyed produced requested records.

In Illinois, many officials who didn’t ignore the BGA still invented ways to dodge the law. Some invoked the Freedom of Information Act in refusing to release records that the law says are open to the public.

The Kane County Forest Preserve District said hiring dates for its employees are exempt from disclosure, even though the law specifically says that’s public information.

One school district refused to release telephone records of the district’s highest-ranking official on the grounds that doing so would be an invasion of privacy, even though the public pays the phone bills. Another refused a request for telephone records, telling the intern that “the copies would not be what you’re asking for.”

Several agencies tried overcharging for the records, even though the law forbids charging more than actual copying costs or billing to retrieve and compile records. The Greene County state’s attorney’s office demanded $93 for a list of employees, even preparing a chart that broke down how much time it would take to compile the records.

Other agencies demanded fees ranging from a flat $50 to $1 per page. One township charged a special $5 fee for non-residents.

The city of Petersburg demanded 84 cents for phone records, so the BGA mailed a check. The city cashed it, but never sent the documents.

The Schuyler County Soil and Water Conservation District appeared to realize what was happening after refusing to provide a list of its employees.

“We are unable to fill your request due to insufficient information,” someone scrawled on the bottom of the request letter, which was sent back to the BGA.

Within a few days, however, a district official called BGA offices and confirmed that the address of the watchdog group matched the return address in the FOIA request. One week after denying the request, the district changed its position and provided the records.

Stewart suspects the district used Google to link the information request with his organization.

“Most citizens would probably go away — John Q. Public probably isn’t going to do anything, and they know it,” Stewart said. “We can make trouble. We might litigate.”

Bruce Rushton can be reached at bruce.rushton@sj-r.com.

@The Mercury 2007