Thursday, July 13, 2017 12:06 am
AG dings Rauner for FOIA violation
Not the first time
One year after signing a law aimed at forcing government to turn over public records, Gov. Bruce Rauner has been cited by Attorney General Lisa Madigan for failing to respond to a request for records.
The governor also failed to respond to the attorney general when the matter was forwarded to Madigan’s office for enforcement of the Illinois Freedom of Information Act.
The Springfield Business Journal, sister publication to Illinois Times, on March 20 requested copies of emails sent or received by Leslie Munger, who was appointed deputy governor by Rauner after losing a bid last year to retain her post as state comptroller. The business journal also requested a copy of Munger’s appointment calendar.
After making the original request, the newspaper sent a half-dozen follow-up emails to the governor’s office but received no response. Pursuant to state law, the paper on May 3 contacted the attorney general’s office, which is supposed to referee FOIA disputes.
The attorney general’s office asked the governor’s office if it had responded to the records request, but no response was received. Two weeks later, the attorney general sent a second letter to the governor’s office that included a reminder that the law requires public bodies to cooperate with the attorney general. After receiving no response to the second inquiry, the attorney general on July 5 issued a binding opinion, stating that the governor must either produce the requested records or explain why they are exempt from disclosure.
Binding opinions on FOIA cases are relatively rare for the attorney general’s office, which last year fielded more than 4,300 complaints after public agencies failed to produce requested records. Since the attorney general gained power to issue binding opinions in 2010, just 75 have been written on alleged FOIA violations, with at least 25 going against public agencies that have ignored requesters, neither furnishing records nor explaining why they cannot be disclosed. Some public bodies, including Chicago Public Schools and Chicago State University, have ignored FOIA requests and the attorney general more than once and received as many as three binding opinions stating that agencies must respond to requests.
The governor must now either turn over Munger’s emails and appointment calendar or explain why they are exempt from disclosure. He could also go to court and ask a judge to toss the attorney general’s binding opinion. Binding opinions don’t have the force of law, and, until this year, it wasn’t clear what to do if a public body did nothing after receiving such an opinion. After considering mandatory fines for governmental bodies that flout binding opinions on FOIA matters, the General Assembly last year passed a law that allows requesters to sue if binding opinions are ignored, but fines that can include penalties as high as $1,000 per day are at a judge’s discretion.
“There was a gap,” says Don Craven, a Springfield attorney and interim president and chief executive officer of the Illinois Press Association. “The question was, now that I have this binding opinion, what the hell do I do with it?”
Gov. Bruce Rauner, who on the campaign trail vowed that his administration would be the most transparent in the nation, touted transparency a year ago when he signed the bill into law that spells out how a binding opinion can be enforced and allows for fines if agencies don’t comply with binding opinions within the 35-day deadline.
“The FOIA act is there for a reason: To provide openness and transparency to the people of Illinois and all across America so that our government actions are known and we can make sure they’re working for your benefit, not for the benefit of others,” Rauner said at a signing ceremony last summer.
The binding opinion issued this month to the governor marks the second time that Rauner has been hit by the attorney general for failing to comply with the state Freedom of Information Act. In 2015, Madigan’s office issued a binding opinion stating that the governor had to comply with a request from Illinois Times for his appointment calendar. The governor turned over the calendar more than three months after Madigan issued her ruling, well after the statutory deadline had expired. The newspaper sued for the records one day after the attorney general ruled, and the governor’s office blamed the paper’s lawsuit for delaying the release of documents.
Contact Bruce Rushton at email@example.com.