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Thursday, March 7, 2013 02:55 am

Shell games and FOIA

Madigan pretends, the media worship

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Thank goodness for the government.

That was the way that Silly Pretend Journalists, aka the Society of Professional Journalists, saw things eight years ago when they bestowed attorney general Lisa Madigan with the coveted Sunshine Award, akin to an Oscar from a group of navel gazers that purports to be a watchdog for the public interest.

Madigan’s trophy, still trumpeted on the attorney general’s publicly funded website, was given not because she had done anything. Rather, she made an election-year vow back in 2003 to overhaul the state’s abysmal public-records law and reverse a culture of secrecy that permeated every level of government in Illinois from the lowliest mosquito-abatement district to the governor’s office. Let the sunshine in!

Fast forward to the real world.

Instead of fixing what was broken, Madigan has made things worse. It boils down to one word: “substantially.”

That’s the word that the attorney general and her minions at the Second-and-Capitol weasel ranch removed from the state Freedom of Information Act in the section of the law that addresses legal fees. Before Madigan came along, judges could award fees if plaintiffs “substantially” prevailed against public bodies that refused to obey the law and turn over public records. Now, thanks to changes Madigan pushed through the General Assembly, judges must award fees if plaintiffs prevail. Not “substantially” prevail, but prevail. And, as any second-year law student can attest, “substantially” makes all the difference in the world.

The practical effect is, you now have to win every single point to get your lawyer paid if the city council won’t turn over the tape of last week’s meeting or the cops won’t give you the burglary report on your own home (and believe me, stuff like that really happens). And you need a judicial order stating that the government was 100 percent wrong before you can collect a cent. If the public body gets religion and turns over the records after you’ve paid for a lawyer and forked over the filing fees and paid for someone to serve the scofflaws and perhaps had a hearing or two, you get nada. And that’s not theoretical.

In Rockford, the Rock River Times, with help from the Illinois Press Association, got a slam-dunk public record involving the termination/resignation of a high-ranking school official (sound familiar?) after going to court. The nose-thumbing was so egregious that the judge fined the district $2,500, the first time in Illinois history (at least so far as anyone can recall) that a court had fined the government for breaking the law that says that the public’s business should be conducted in public. But that same judge last fall also ruled that Rock River Times wasn’t entitled to attorney fees because the district, after being sued, turned the records over on a Wednesday night the day before Thanksgiving in the time-honored tradition of hope-nobody-notices.

In short, you have to pay your lawyer thousands, maybe tens of thousands, in the hopes of collecting, at best, the maximum $5,000 fine. Or maybe nothing, given that the law that Madame Sunshine and her Silly Pretend Journalist friends pushed through the legislature makes fines optional.

It’s the kind of math public bodies rely on when middle-fingering those who have the temerity to ask what’s going on with their tax dollars. The proof is posted on the website of the attorney general’s office, which on Feb. 21 decreed that public bodies, in this case Chicago Public Schools, must, at least, respond to FOIA requests. School officials had simply ignored a request from an outfit called Substance News submitted before Christmas (which shouldn’t have been surprising, given that CPS a year ago similarly blew off a writer for The Chicago Reporter who heard only crickets after asking for documents). Then CPS ignored the attorney general when Madame Sunshine demanded an explanation. The substance of the request is immaterial. That it took the attorney general nearly two months to order CPS to either say yes or no to the records request speaks volumes. That CPS still hasn’t said yes or no, and suffered no consequences, seals the deal.

The government in Illinois is free to keep anything secret that it wishes to keep secret, and, thanks to Madigan and her Silly Pretend Journalist enablers, there is no way for anyone to do anything about it unless they have deeper pockets than the government to pay lawyers, and good luck with that.

There is, however, a purported solution, and it is a classic Illinois scheme, contained in a so-called shell bill in which the word “substantially” might, I’m told, be restored to the statute from which it was removed in the name of reform just four years ago. I will believe that when I see it. What we have now is a bill with the word “the” stricken from the statute and replaced by the word “the.”

Only in the minds of Bill Clinton and Illinois lawmakers could the meaning of such short words as “is” and “the” fall into question. That such foolishness is in play with a law that’s supposed to ensure transparency and truth underscores the paucity of transparency and truth in Madame Sunshine and her Silly Pretend Journalist allies. They are as naked as the emperor, and an emperor with no clothes deserves tomatoes.

I did not throw tomatoes, but I didn’t say yes when someone from Silly Pretend Journalists called a few months ago asking me to renew my membership. I had spoken with this person before, and I reminded her of my request that SPJ rescind Lisa Madigan’s Sunshine Award. I told her that I would pay for five SPJ memberships if Silly Pretend Journalists revoked something that should not have been given in the first place. An award to an elected official in Illinois based on a promise to keep elected officials honest? Hah!

I did not hear back from Silly Pretend Journalists, but I suspect we will hear much about FOIA in the coming days with the approach of Sunshine Week that begins March 10 – it’s the annual observance by SPJ types of the need for our government to not emulate the KGB. There will likely be a lot of blah-blah-woof-woof about the public’s right to know and more huffing and puffing by Madigan, but no houses will get blown down. As a former colleague wrote recently, it’s easy to figure out which politicians insult transparency by counting the number of times they say “transparency.” The same holds true for the Fourth Estate.

Contact Bruce Rushton at brushton@illinoistimes.com.

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