Despite the cold weather bearing down on Springfield this past week, there has been plenty of talk of sunshine in Illinois politics. It began on January 14, as newly minted Attorney General Kwame Raoul stated, “I will do my part to let in sunshine … and make the office work proactively to create transparency in government.” Then, `Governor J.B. Pritzker’s first executive order asked agencies to provide detailed plans on how they will make their data more accessible to the public.
These are the kind of commitments that make good government advocates feel all warm and toasty. But, we never can get too cozy, because protecting the public’s access to information takes constant vigilance. Recent analyses by the BGA’s Policy and Civic Engagement teams show us why. One review found that legislators introduced nearly 200 bills that changed the Freedom of Information Act (FOIA) in the last General Assembly. Another examination showed that government agencies continue to violate public records laws at a high frequency, despite changes in 2009 that were intended to increase FOIA compliance.
Attorney General Raoul on Monday pledged to adequately resource the Public Access Counselor (PAC), which is the office charged with enforcing the state’s transparency laws. The PAC currently has 20 employees and a backlog of complaints documented by ProPublica reporting. Increasing the capacity of this body would be a good first step for Illinois’ new attorney general. Yet, even with a larger office, the PAC may only be able to do so much. The BGA’s examination of 27,553 FOIA reviews done by the PAC between April 2010 and March 2018 shows how problematic non-compliance has become. For example, governments across Illinois had outright ignored about 17 percent of the requests in the sample, in direct violation of state law.
Representatives of the PAC stated, “far too often, government offices are choosing to ignore the law and working to thwart the Public Access Counselor.” Stopping compliance problems before they start would help make the PAC more efficient and bring a bit of sunshine to Illinois.
During the last major effort to strengthen FOIA, House Speaker Michael Madigan noted that penalties, stiff ones, would help compel compliance. However, the penalties those amendments imposed have not been enough to inspire a culture of transparency. Perhaps that’s because even after the PAC gets through its backlog, reviews an agency’s actions, and finds that a violation has occurred, no fine can be imposed until a court determines that the violation was “willful.” In practical terms, this means fines are rarely seen.
Governor Pritzker’s executive order indicates that he is hoping to hold agencies to the “highest degree of transparency accountability standards.” Hopefully, he and the attorney general will work with legislators to make transparency a default. Requiring agencies to show that a tangible harm will occur from the release of a record before they claim an exemption, as federal law requires, and lowering the requirement that a court must determine a violation was willful before any penalty, however small, can be imposed, are two ways to make this happen.
Despite the current cold spurt, the Farmer’s Almanac forecasts a warmer-than-average winter for Illinois. Time will tell. Perhaps we’ll see some sunny days in Springfield, and the prediction will come true.