BGA Backs Transparency Lawsuits

Better Government Association files motions in two lawsuits aimed at preventing the erosion of the Illinois Freedom of Information Act.

Contacts:
Mary Frances O'Connor (312) 821-9026
Robert Herguth (312) 821-9030

CHICAGO—In an attempt to maintain the integrity of Illinois' open records law, the Better Government Association is throwing its support behind two lawsuits that are fighting for transparency in the public sector.

Both lawsuits aim to stop local government agencies from chipping away at the Illinois Freedom of Information Act – "FOIA" – a state law that guarantees public access to most of the documents in the possession of public agencies.

In one of the suits, Nelson v. Kendall County, an appellate court ruled that prosecutors are not subject to FOIA. The practical effect is that members of the public may be unable to obtain records from state's attorneys, or assess the quality of their work on behalf of taxpayers.

The BGA joined forces with the Illinois Press Association and the Illinois Broadcasters Association in asking for permission to submit an amicus – or "friend of the court" – brief to the Illinois Supreme Court, which is being asked to overturn the appellate ruling.

In the joint filing, the groups assert "the appellate court failed to construe the FOIA in accordance with the public policy articulated by the General Assembly and ignored well-established precedent as well as the reality of state's attorneys' practice vis-à-vis the work of the courts."

BGA President and CEO Andy Shaw says "now is the time for more scrutiny of prosecution offices and their operations, not less. A slew of wrongful convictions in Cook County alone dictate the need for a strong watchdog to look at how state's attorneys conduct the public's business and pursue justice."

Meanwhile, the BGA has been granted permission by the Illinois Supreme Court to file an amicus brief in another case, Garlick v. Madigan.

That lawsuit is challenging a decision by Illinois Attorney General Lisa Madigan's office, which refused to provide public records in a specific commonly used electronic format to a FOIA requester, but instead produced pre-existing PDF reports.

The appellate court ruled that a public body is not required to produce electronic records in a format different from the way the records already exist, even if it's feasible to do so.

The General Assembly amended FOIA in 2010 to create a workable system for public access to electronic records, and the BGA believes the appellate court's decision is contrary to the letter and the spirit of those amendments, and would make it more difficult – and in some cases impossible – for the BGA and other members of the public to access electronic records.

Both filings were done with the pro bono assistance of Kirkland & Ellis LLP, which has graciously helped the BGA in a number of legal efforts over the years in pursuit of open and honest government.

"We are pleased to be able to represent the BGA on important issues relating to public transparency – one of the cornerstones of a healthy democracy," says Kirkland & Ellis partner Matthew Topic.

The BGA has always fought for greater transparency and accountability in government, with the BGA's Policy Unit lobbying against numerous legislative attempts to water down FOIA, and BGA pro bono lawyers filing litigation to challenge public agencies working against the public interest.

The Better Government Association is a Chicago-based nonprofit, nonpartisan watchdog group that works for integrity, transparency and accountability in government by exposing corruption and inefficiency; identifying and advocating effective public policy; and engaging and mobilizing the electorate to achieve authentic and responsible reform.