Better Government Association

FOIA under fire

Critics say open records law is flawed

Brandon Weisenberger
Issue date: 6/19/07 Section: City

The quarrel over the release of five university employees' contracts is one in a long line of disputes regarding public records throughout the state.

From Chicago to Carbondale, Illinois agencies in the past year have blocked access to documents that spell out employee performances, logistics of the governor's hiring practices, origins of malignant tumors and other material that critics of the Freedom of Information Act say are integral for the public's knowledge.

One political watchdog said SIUC's blocking of a southern Illinois newspaper's push for contracts represents a broader problem among many on the state's payroll.

"Too many public officials forget that they work for the public and they think that the public works for them," said Jay Stewart, executive director of the Chicago-based Better Government Association. "We have the right to know what's going on with our government."

The opening lines of the state's FOIA declare that citizens are entitled to information regarding the affairs of government and those who serve as public officials.

But several hurdles stand in the way of access to public documents, including more than 40 exemptions that deem inquiries into certain details an invasion of privacy.

One of those exemptions is at the core of the university's battle with the Anna Gazette-Democrat, a weekly newspaper that sued SIUC after being denied access to contracts in 2006. The university said personal information in the contracts should be kept private, while the paper's publisher contends that any document involving tax dollars should be available for the public.

The 4th District Appellate Court in Springfield heard arguments for and against the contracts' release on Wednesday. A ruling in the case, which could determine how much personal information about Illinois' public officials can be released, is forthcoming.

SIU's attorney Jerry Blakemore told the Chicago Tribune in the June 14 issue that employee contracts can contain explicit personal information such as Social Security numbers. The university is a transparent institution, Blakemore said, but some information should not be disclosed.

"People have a right to know about the expenditure of public funds and that is what we provide," he said. "…But it's not just (Poshard's) privacy rights that are at issue, it's all the employees of the university both now and in the future."

Stewart said Blakemore is only focused on the exemptions listed in the act and disregarded the section of the statute that says public officials can essentially black out information they deem personal while providing the rest of the document.

"The lawyers and the administration darn well know that the Freedom of Information Act allows you, if there is some material that's exempt from disclosure, to redact it. That's what the black lines are for," Stewart said. "They act as if one shred of a document contains something subject to an exemption, they can exempt it all. It's bad policy. It's bad law and I think it's really sad."

While many FOIA requests are filed by journalists, difficulties in obtaining records are not limited to the media.

A Better Government Association investigation in 2006 revealed that more than half of the 408 governmental bodies in Illinois did not comply with FOIA regulations.

The association enlisted an average citizen to file requests for public records. Nearly 155 of those did not respond to the inquiries, while one reneged on its denial when it learned the individual was assisting in an investigation.

Some of the denials were based on an exemption that states "personnel files" are not public records. The term "personnel files" is ambiguous, critics argue, and is the primary loophole that agencies use when they don't want to disclose material.

The FOIA defines six terms - public body, person, public records, copying, head of the public body and news media - but gives no meaning for "personnel files."

SIUC officials labeled the employment contracts as "personnel files," but the attorney representing the opposing Gazette-Democrat said the university was among a slew of public bodies that make it their policy to say "no" to records requests.

"It's been reported that some agencies deny FOIA requests as a matter of routine on the theory that the requestor will just go away," said Craven, a Springfield-based attorney and critic of the FOIA.

Craven said a ruling against his client would likely spur amendments in the Illinois General Assembly, which approved the FOIA in 1983 as the last state in the union to adopt an open records statute.

Illinois' act came nearly 20 years after federal open records legislation went into effect. Many states established guidelines in the 1970s after the Watergate scandal increased government scrutiny.

Some states have even established penalties for FOIA violations, which are not included in Illinois' legislation.

Withholding public documents in Florida can fetch jail time and violations in Washington state can bring a fine of up to $100 a day. Officials in Texas are required to go through public records training, and can be prosecuted for not following guidelines.

Critics in Illinois say more sanctions are needed in the FOIA, including fines if an agency unjustifiably blocks access. For Craven, all he wants is more openness in government functions.

"Mistakes are made. Money can be lost. Wrong amounts can get paid," he said. "As taxpayers, we are entitled to know how money is spent."

Brandon Weisenberger can be reached at 536-3311 ext. 262 or brandonw@siude.com.