Analysis: Illinois Law Hasn't Stopped Public Agencies From Withholding Records
The Freedom of Information Act in Illinois is best understood by viewing the Act in two eras: "Before Blago" and "After Blago."
Illinois Governor Rod Blagojevich was removed from office in 2009 after his arrest on corruption charges. The scandal set off a new round of government accountability efforts in Illinois.
Before Blago, getting your FOIA request denied meant you were out of luck unless you had a good lawyer. After Blago came the Public Access Counselor’s office — or PAC — designed by the state legislature to provide an alternative to litigation for disputes between members of the public and public bodies around records requests.
It’s almost nine years since the PAC — 13 full-time lawyers, 3 supervisors, and 4 support staff — started receiving, investigating and ruling on records disputes under the supervision of the Illinois Attorney General’s Office. With Lisa Madigan on her way out and A.G.-elect Kwame Raoul gearing up, it’s a good time to assess how well public officials are sharing information with the public in the PAC era.
Last October, ProPublica Illinois’ Mick Dumke published an in-depth review of the PAC based on a comprehensive record of PAC rulings on the Freedom of Information Act from April 6, 2010, to March 15, 2018. Dumke’s story is a critique of the office itself that consolidates arguments frequently raised by critics, including the BGA: Resolution of a PAC review can often take months or longer, and the vast majority of the time it ends in a non-binding determination that many public bodies have ignored with no repercussions.
What follows here is the BGA’s analysis of that same PAC dataset — which is publicly available and dissectable — to assess behavior patterns for the public bodies based on the findings and rulings of the PAC.
The BGA shared its findings with the PAC, which issued an official statement expressing its concern over the behavior of public bodies.
“Despite years of work to change the culture of secrecy in Illinois government, the BGA’s findings show that many government offices still routinely disregard their obligation to provide access to government records,” the statement read. “The role of the Public Access Counselor is to resolve open records disputes, and we devote thousands of hours to doing that every year. But, as these findings demonstrate, far too often, government offices are choosing to ignore the law and working to thwart the Public Access Counselor.”
Summary: What we found and how we found it
When public bodies deny requests for information made by the public under the Freedom of Information Act (FOIA) and the Open Meetings Act (OMA), members of the public can file a request for review with the PAC. For FOIA requests, the PAC then determines whether denial of the request was warranted and the public body lawfully withheld information, or whether that denial constitutes a violation of FOIA and the information should have been released to the requester. For OMA requests, the PAC determines whether a public meeting did or did not comply with the Open Meetings Act.
The BGA looked at how the PAC ruled on 28,270 FOIA and OMA requests for review from April 6, 2010 to March 15, 2018.
We broke down the available data to determine how often public bodies had (or had not) violated FOIA and OMA, according to the PAC.
Key finding #1: Many ignore records requests, with CPD and prisons as top offenders
The most basic requirement under FOIA is that public bodies are required to respond to all requests they have received within the statute’s deadlines. In fact, the statute says that this is a “primary obligation” of government.
The BGA examined the frequency with which public bodies failed to respond to FOIA requests and tallied the top 5 non-responsive public bodies. While this does not reflect the full extent of these failures (only those in which the requester sought PAC review), examining the subset that resulted in PAC review paints a troubling picture.
Out of the top 5 public bodies that initially failed to respond to requests — and only responded after the PAC intervened — the Chicago Police Department ranked the highest with 672 requests that it did not respond to during this period. Additionally, there were 6 instances in which the Chicago Police Department did not respond even after PAC intervention during the time period we studied. In fact, the PAC issued a binding opinion as recently as December 31, 2018, based on CPD’s failure to respond to a request even after the PAC intervened. Based on a FOIA request we submitted to CPD recently, it does not appear that anyone at CPD was ever disciplined for these violations.
In our list of the top 5 offenders, the Illinois Department of Corrections ranked second with 519 FOIA violations1 — that is, they did not respond to 519 FOIA requests. The Illinois State Police ranked third with 200 violations2 , followed by Chicago Public Schools with 199 violations3 , and the Cook County State’s Attorney’s Office with 162 violations. Overall, there were over 4,600 of these instances for all public bodies across the state during the time period we examined.
Key finding #2: Some public bodies improperly deny records more than half the time
The BGA examined the frequency with which public bodies claimed a FOIA exemption that was found to be improper from April 6, 2010, to March 15, 2018. The PAC Office determined that public bodies had asserted incorrect exemptions 1,345 times — approximately 30 percent of the times in which the PAC issued a substantive determination on an exemption claim.
The BGA also tallied the 14 public bodies with the worst records for denying information requests based on incorrectly applying an exemption. We limited our analysis to public bodies with at least 20 substantive review determinations during the time period we analyzed and noted the 14 public bodies with violation rates higher than the statewide average.
According to the PAC data, out of the top 14 public bodies that incorrectly applied exemptions to deny FOIA requests, the City of East St. Louis was in violation 100 percent of the time, the University of Illinois 63 percent of the time, the City of Joliet following closely at 58 percent of the time, the Illinois Department of Central Management Services and the Illinois Department of Transportation both 46 percent of the time, and the Chicago Police Department 43 percent of the time.
This shows the frequency with which public bodies incorrectly apply FOIA exemptions to deny public records. However, it does not cover the broad expanse of all the FOIA requests received by these bodies — it only covers those requests that were sent to the PAC Office for review and yielded a substantive determination.
Additionally, some public bodies whose overall violation rate fell below 30 percent were noteworthy for their total number of violations. One such example is the Illinois Department of Corrections. During the period we examined, the PAC determined that the Department of Corrections incorrectly applied FOIA exemptions 109 times. The total number of times the PAC reviewed substantive exemption claims against the Department of Corrections was 702.
Reviews of FOIA requests can also be “informally resolved” by the PAC. From April 6, 2010, to March 15, 2018, the PAC resolved 2,216 requests for reviews with public bodies informally. According to the PAC Office, more often than not, these are cases in which they would have ruled against the public bodies — that is, they would have decided that the public body was in violation of FOIA — but decided to pursue the case informally instead.
Informally resolving cases typically entails the public body releasing documents that should not have been withheld in the first place.
Alongside determining that the 14 public bodies listed above failed to apply FOIA exemptions correctly, the PAC also informally resolved requests for FOIA reviews with 9 out of those 14 public bodies. Chicago Police Department tops the list with the PAC settling requests for review informally 157 times over a span of approximately eight years. This means that other than FOIA exemption violations, there were an additional 157 instances in which the PAC would most likely have decided that CPD was in violation of FOIA but chose to settle the dispute through informal correspondence and resolution instead.
The PAC informally resolved requests for FOIA reviews with the Illinois State Police 76 times, Chicago Public Schools 71 times, Cook County State's Attorney’s Office 18 times, the Illinois Department of Transportation and the University of Illinois 17 times each, and Will County Sheriff's Office, the Illinois Department of Central Management Services, and the City of Chicago Office of Emergency Management and Communications, 15 times each.
Additionally the PAC informally resolved requests for FOIA reviews with the Illinois Department of Corrections 102 times, Adams County State's Attorney’s Office 67 times, and the Cook County Sheriff’s Office 25 times.
These violation findings do not mean that public bodies released documents to those requesting them. PAC determinations are either binding or advisory. If the PAC issues a binding opinion, which occurs infrequently, the public body must either comply with it or initiate review proceedings in a court. If the PAC Office issues a determination, it is merely advisory. Therefore, despite the issuance of a PAC determination, public bodies are not bound to follow them and the requester is forced to file a lawsuit against the public body if the public body ignores the PAC’s determination.
Finally, public bodies often complain that FOIA exemptions are not sufficiently clear. What this overlooks, however, is that the law is very well established that all exemptions must be “narrowly construed.”4 Public bodies that complain about the lack of clarity of exemptions are failing to comply with this legal mandate: If the scope of an exemption does not clearly apply to a record with 100 percent certainty, it must be produced.
Key finding #3: Open Meetings Act was violated in 42% of cases
The BGA also looked at the PAC dataset for entries on the Open Meetings Act and determined the frequency with which public bodies violated OMA or did not violate OMA, according to PAC.
The PAC dataset could be referring to any number of OMA violations and does not indicate whether the violation in question referred to one of the following, for instance:
- Whether a public body improperly went into closed session
- Whether a public body provided adequate notice of the meeting
- Whether a public body allowed public comment
- Whether the meeting was held in circumstances that were convenient to the public
- Failure to disclose minutes of meeting
- Failure to conduct the meeting in an adequate place
Between April 2010 and March 2018, the PAC Office reviewed 717 OMA requests and found that public bodies violated the Open Meetings Act approximately 42 percent of the time. There were 301 instances in which the PAC determined that the public bodies’ denial of open meeting records violated OMA and 416 instances in which PAC decided the public bodies’ actions were not in violation of OMA.
What it all means
In the debate on the 2009 FOIA amendments, Speaker Michael Madigan noted the problems with FOIA compliance and stated that “a good way to compel compliance with the statute is to impose stiff civil penalties for noncompliance.” The BGA’s findings make clear that despite the 2009 FOIA amendments, and the introduction of penalties of up to $5,000 for “willful” violations, public bodies continue to violate FOIA on a regular basis. Clearly, a stronger deterrent is needed to discourage public bodies from improperly keeping information secret.
The findings also demonstrate that many of the top violators are law enforcement agencies. This is particularly troubling as it makes clear that agencies charged with enforcing the law are failing to follow the law that applies to them. Further, the lack of transparency into law enforcement activities is troubling in a city like Chicago, in which the federal government has found that the department has engaged in a pattern of civil rights violations.
More on our process, and raw numbers
Part I: Decoding “dispositions”
The PAC data contained a set of 32 codes — called “dispositions” — that corresponded with each request for review received. The PAC Office uses these codes, which abbreviate the reasons for each decision on each case, for internal tracking purposes.
In order to get a full picture of the how, why and who, the BGA worked with the PAC Office to clarify what each “disposition” code meant and how they were applied by the PAC. From there we clarified each disposition code — effectively re-creating the PAC’s decision-making rubric — in order to filter and analyze the 28,270 entries from April 6, 2010, to March 15, 2018.
- “Closed - RFR Unfounded.”
- “Closed - Pre-authorization denied.”
- “Closed RFR mediation.”
The BGA reduced the full data set down to “dispositions” that were substantive in nature — that is, those that addressed the merits of each FOIA claim and yielded a practical result.
We excluded all FOIA entries in the dataset that did not lead to a substantive determination, such as those that were resolved by agreement or mediation, were withdrawn by the requesters, were not filed in a timely fashion, or were not targeted at public bodies.
We also excluded the 2,777 cases that were still under review (“Open”) by the PAC Office, and the 127 cases that were closed by the PAC because the requesters decided to file a lawsuit against the public body. In such cases, the PAC is required by law to end its inquiry.
This left a total of three categories in the PAC spreadsheet that were relevant to the Freedom of Information Act claims and led to substantive determinations. Each of these three categories pertained to the use and applications of FOIA exemptions by public bodies.
Part II: Exemption violations and non-violations under the Freedom of Information Act
“Exemptions” under the Freedom of Information Act are protections afforded to public bodies to reject requests for information and prevent the disclosure of certain information.
While FOIA exemptions are highly technical and generally require public bodies to prove a number of elements, some general examples are personal information like home addresses, confidential information such as Social Security numbers, certain law enforcement records, certain trade secrets, internal deliberations on policy matters, and certain requests where the burden of compliance outweighs the public interest in disclosure.
When an individual believes their FOIA request has been denied due to the application of an incorrect exemption, they may file a request for review with the PAC Office.
If the PAC determines that the public body incorrectly applied an exemption that led to information being wrongfully withheld, denial of the FOIA request amounts to a violation.
If the PAC determines that the public body applied an exemption correctly and did not wrongfully withhold information, denial of the FOIA request does not amount to a violation.
We decoded and split the three categories pertaining to the use and application of FOIA exemptions into 4,559 determinations of FOIA violations and non-violations:
FOIA NON-VIOLATION: “RFR Unfounded.”
Total entries within a span of approximately 8 years: 977
These are cases in which an informal inquiry by the PAC Office provides sufficient information to determine that the complaint has no merit — that is, the public body did not violate the statute and the PAC did not need to initiate a formal review to reach this conclusion.
The information requested may have been destroyed in the ordinary course of business, may not exist, or could be confidential. An example of this instance is where a call by a PAC staff member to the public body confirms that the one redaction in a report was a Social Security number. The PAC Office found that 977 complaints about FOIA denials had no merit and that the requests were rightfully denied by the public body.
The fact that a FOIA requester is not satisfied with the records that have been furnished to him or her does not amount to a denial. Therefore, when the PAC determines that the requester’s claim against the public body was unfounded, it is treated as if the response complied with the FOIA statute and was not a violation of it.5
FOIA NON-VIOLATION: “RFR Public Body’s Exemption Proper.”
Total entries within a span of approximately 8 years: 2,237
There were 2,237 instances in which the PAC Office initiated a formal review but found no violation and no abuse of FOIA exemptions.
FOIA VIOLATION: “RFR Disagree with Public Body’s Asserted Exemption.”
Total entries within a span of approximately 8 years: 1,345
The BGA used the following formula to calculate the frequency with which the top 14 public bodies in the PAC dataset incorrectly applied exemptions to deny FOIA requests:
Applying the formula to the statewide numbers above yields a statewide violation rate of approximately 30 percent:
Looking at one example, the Chicago Police Department’s total number of violations was 142 and the total number of substantive PAC exemption reviews was 331. At 43 percent, therefore, the Chicago Police Department is among the top offenders for public bodies that improperly claimed FOIA exemptions.
It is important to remember that this is a subset of the actual number of FOIA requests that are sent to the PAC Office for review, and an even smaller subset of the number of FOIA requests received by each public body over the years. In many instances, requesters do not seek review by the PAC.
For instance, while the Chicago Police Department had 142 exemption violations, that is a small portion of the FOIA requests people sent to the PAC for review. The number of exemption violations could be far greater, but that statistical analysis could only be completed if every person whose FOIA request had ever been denied by the Chicago Police Department sent it for review to the PAC Office. In addition, the number of CPD exemption violations determined by the PAC make up a small percentage when compared to the total number of FOIA requests received by the Chicago Police Department over the years—which is well into the thousands.
Part III: Failure to respond to FOIA requests
(“RFR Response after Public Body Intervention”)
The BGA used the PAC data to deduce the frequency with which public bodies failed to respond to FOIA requests.
If a public body does not respond to a FOIA request within 5 business days, it amounts to a denial of that request, according to the law. While a public body can ask the requester for an extension of the deadline by an additional 5 business days, that request must be asserted within the original 5-day timeline — not after it has already expired.
There were 4,668 instances in which the PAC Office found that the public body had not responded to a FOIA request and responded only after the PAC had reviewed the request and prompted the public body to do so by sending a letter of further inquiry.
As noted above, in our list of the top 5 public bodies that initially failed to respond to requests — and only responded after the PAC intervened — the Chicago Police Department ranked the highest with 672 requests that lacked a timely response. The Illinois Department of Corrections ranked second, failing to respond to 519 FOIA requests. The Illinois State Police ranked third with 200 non-responses, followed by Chicago Public Schools with 199, and the Cook County State's Attorney’s Office with 162.
1 All of the individual correctional centers in the PAC dataset were consolidated.
2 Consolidated with an individual PAC entry for the Illinois State Police Forensic Science Center at Chicago.
3 Consolidated with individual PAC entries for the Chicago Public School Law Department; Lincoln Park High School; Curtis Elementary School, John Marshall Metropolitan High School, and Jamieson Elementary School.
4Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 407 (1997) (“In conducting our analysis, we are guided by the principle that under the Freedom of Information Act, public records are presumed to be open and accessible. The Act does create exceptions to disclosure, but those exceptions are to be read narrowly.”).
5 To be conservative, we treated all "RFR Unfounded" entries as a finding that an exemption was properly asserted. In reality, the PAC has informed us that some of these may have been unfounded for other reasons, such as where a requester objected to the accuracy of the information in the records, which is not a basis for an RFR. Because the PAC did not separately track exemption-based entries and others, we included them all as a substantive finding of an exemption properly asserted, which means that the violation rates are likely higher than we have reported here.