Better Government Association

A system of loopholes

By BRUCE RUSHTON
STAFF WRITER
Published Friday, April 27, 2007

In Florida, withholding a public record is a crime punishable by fines, jail time or both. In Washington, scofflaws can be fined up to $100 a day.

In Texas, every public official must undergo training on public-records law, officials who break the law can be prosecuted, and no record can be kept secret without approval from the attorney general.

In Illinois? No penalties whatsoever for breaking the law — not even legal fees for plaintiffs forced to sue to get records from the government. Plus, Illinois’ Freedom of Information Act contains dozens of exceptions to the rule that says government records must be released to the public upon request.

It adds up to a system of loopholes in which only the wealthy can afford to press for public records and there is little incentive for public officials to obey the law. But few observers believe the legislature will change anything.

“There will come a time when it’s necessary to review the act and say what works and what doesn’t, what’s broken and what’s not,” says Terry Mutchler, public access counselor for Attorney General Lisa Madigan.

States started enacting Freedom of Information statutes after a federal FOIA law took effect in the late 1960s. Some states took action after the Watergate scandal deepened suspicion of government.

Illinois waited until 1983, making it the last state in the nation to pass a law aimed at guaranteeing public access to government records. But even that law is so excuse-friendly that it can be read to mean just about anything you want.

“You’re going to be able to use the act like some people use statistics,” Mutchler says. “If you want to be able to use it to block the flow of information, you’re probably going to be able to do that.”

Personnel records are a good example.

One section of the law says anything that violates personal privacy is exempt from disclosure. It lists information in personnel files as an example. But the law also says this:

“The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.”

So what should happen if a firefighter or teacher is disciplined or fired for sleeping on the job? In more than a dozen states, the public has the right to know about wrongdoing by government employees, especially after discipline has been meted out and all avenues of appeal exhausted. But in Illinois, government officials typically say they can’t release any records when public employees engage in wrongdoing, no matter how egregious the conduct.

Critics of the Illinois law have two main suggestions: Cut down on the number of loopholes, and make violations hurt.

Illinois has so many exceptions to its public records law that experts can’t agree on the number, which appear in law books as a mish-mash of subsections, paragraphs and subparagraphs. In any case, lawyers familiar with the statute say that Illinois has, if not the most exceptions in the nation, more exemptions to its law than most other states.

Exceptions are generally listed by letter. Having already gone through the alphabet once, lawmakers are now at exception QQ, which exempts from disclosure the amount of public money spent on public defenders in death-penalty cases.

Other exceptions include EE, which exempts performance evaluations of architectural and engineering firms hired by the state, even though the evaluations are written at public expense by public officials evaluating the quality of work performed at public expense.

There’s also exception KK, which prohibits anyone from discovering how money collected from cell-phone companies to support 911 service is being spent.

Public officials often say exceptions listed in FOIA prohibit the release of information. In fact, courts have ruled, exceptions to the law are discretionary, meaning that public officials aren’t bound by them, but can use them if they choose to withhold records.

“What we’re trying to correct in this state is, ‘Oh, there’s an exception: Let’s use it,’” Mutchler said. “In the state of Illinois, you should always start with the premise that public records should be open and available.”

The law didn’t start out this weak.

Over the years, the number of exemptions has nearly doubled – legislators called it quits at exception W when they passed the Freedom of Information Act in 1983. And there was reason to pay attention to the law.

The original bill sent to Gov. James Thompson declared violations to be misdemeanors so scofflaws could be punished. The bill also required courts to award legal fees to successful plaintiffs if the records had significant public interest and the government had withheld them without reasonable basis.

Thompson eliminated the misdemeanor provision. He also gutted a provision that allowed plaintiffs to collect legal fees by changing a “shall” to “may.” Then he sent the bill back to lawmakers, who approved the changes.

“An override wasn’t going to succeed,” recalled Rep. Barbara Flynn Currie, D-Chicago, who sponsored the bill. Currie, who sponsored unsuccessful measures in 2000 to fine violators and force them to pay legal fees for plaintiffs, isn’t optimistic that her colleagues will pass a stronger law.

“It’s not the sort of issue that’s at the top of anyone’s priority list,” Currie said. “But it becomes a priority when there are examples of misuse or abuse.”

The Better Government Association, a Chicago-based government watchdog organization, has several recommendations for lawmakers, including:

* Make violations misdemeanors, but allow “human error” as a defense.

* Require any government agency that receives state funds to file an annual report on compliance with FOIA with the attorney general’s office. Any agency that fails to file a report would lose 5 percent of its state funding.

* Require courts to award legal fees to successful plaintiffs who sue after receiving an opinion from the attorney general that the records in question should be released.

Like Currie, BGA director Jay Stewart holds no illusions. He’s hoping that Madigan is compiling statistics and examples of abuse that can be used to convince lawmakers that complaints about a weak Freedom of Information law aren’t just anecdotal. Unless the attorney general or someone else with clout makes change a mission, lawmakers won’t do anything, he predicts.

“Illinois is not a state where you’re going to see reform for the sake of reform,” Stewart said.

State Sen. John Jones, R-Mt. Vernon, said his experience has convinced him that penalties might have to be increased.

In May, Senate Republicans asked the Illinois Department of Corrections for a $443,000 study of prison staffing that had been conducted by an accounting firm that was paid in full in January. After nearly a month with no response, Republicans filed an appeal. Still no response. In August, Jones asked for a copy of the study.

The department asked for an extension of time while it evaluated correspondence with the accounting firm to see if anything could be released. The department promised an answer by Aug. 21.

“They kept saying they didn’t feel that the information was ready to be given out yet – all kinds of excuses,” Jones said. He crossed party lines and asked for help from Madigan on Aug. 29, eight days after the department had promised to get back to him.

Within two weeks of asking Madigan for help, Jones got 1,000 pages of documents.

“I’ve got staff going through that,” Jones said. “It’s a draft. You would think if we’re going to pay that company that kind of money, there would be a final recommendation to the department: This is where you’re at on staffing levels. That’s what I haven’t seen.”

Jones said he is “astounded” that the attorney general needs staff members who are devoted to riding herd on FOIA. He added that his experience has given him empathy for journalists.

“I understand what you folks go through now,” he said. “I’ve heard the media complain and express concerns. Having not been down that road, you think, ‘Oh, it’s not really that bad.’

“It is.”

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