Time for a change
Weak FOIA needs penalties
Florida and Washington state each employ one full-time person to ride herd on laws ensuring public access to government records.
In Illinois, taxpayers are supporting a 17-employee bureau within the attorney general’s office that’s little more than a tissue tiger when it comes to ensuring that government business is conducted in the open.
Gadflies and journalists have learned that the public access counselor’s office, conceived and nurtured by attorney general Lisa Madigan, is the appeal of last resort when government agencies refuse to release public records. You go there only if you can’t find a lawyer to take your case – it’s the equivalent of an overworked, outgunned public defender’s office.
Florida and Washington have laws with teeth and so don’t need divisions of government-paid lawyers to keep the government in line, a notion that’s as silly as it sounds, particularly in Illinois. Secretive government agencies in states with strong laws get sued and punished – just ask the tiny town of Mesa in Washington state, which was hit this year with a $175,000 fine, plus $118,000 in legal fees, for illegally withholding public records. In Florida, public officials who withhold public records can be prosecuted.
In Illinois, some government agencies can, and do, simply ignore requests for records, and some even ignore the public access counselor’s office, refusing to respond to emails and phone calls sent on behalf of requesters who seek help from the attorney general. There is no penalty for doing this. Agencies can, and do, go to court to appeal decisions from the attorney general’s office, and when that happens, requesters also get named as defendants and so end up in court. Secretive government officials, on the other hand, get free legal help courtesy of taxpayers. In short, there is no disincentive to stonewall.
Six years after purported reforms were enacted to close loopholes in the law, the attorney general’s office says that it takes time to make rulings on FOIA cases because there’s a lack of case law. It is much the same thing the office said in 2010, after scandals involving former Gov. Rod Blagojevich pushed the General Assembly to revise the Freedom of Information Act that had long been a joke. “These things take time” is hardly a good answer when you need a record now. “There isn’t a lot of case law to provide guidance,” is another way of saying that the law remains vague and filled with loopholes.
Seven times since 2012, Illinois Times has sued to obtain public records. The paper is now suing the Illinois Historic Preservation Agency, which didn’t respond to a records request sent in June to obtain documents relating to the funding of the Papers of Abraham Lincoln project. The agency’s lawyer delivered a sheaf of paper documents the day the process server showed up in August.
We go to court when we think the record is important and the violation egregious. We’ve failed to get records just once. When we win, taxpayers pick up the tab. That we sue as often as we do indicates the culture in Illinois hasn’t changed: Public agencies still think that they can thumb their nose at FOIA, and they’re largely right. When the worst thing that can happen is a lawsuit or a tsk-tsk letter from the attorney general at some distant point in the future, too many public officials err on the side of secrecy.
Other states have closed loopholes in public-records statutes, and Illinois should do the same. That starts with meaningful penalties so that public officials feel real pain when they behave as if government is a proprietary endeavor. The law allows judges to levy a maximum fine of $2,500, but that’s largely hypothetical – so far as anyone can determine, that sanction has been levied just once since 2010. The law should be taken seriously. A few six-figure fines would get a lot of attention fast and accomplish instantly what a cadre of lawyers in the attorney general’s office hasn’t been able to do in six years.
Contact Bruce Rushton at firstname.lastname@example.org.