Freedom from Oversight: The ICPR FOIA Report

Freedom from Oversight:
Too Many Public Bodies Avoid their Obligations
Under Illinois' Freedom of Information Act

An ICPR Issues Briefing | April 2012

Introduction

ICPR FOIA Report

Click to download a printable version of this report as a PDF.

The Freedom of Information Act (FOIA) enshrines the idea that government records belong to the people of Illinois. The Act begins with this broad declaration:

Pursuant to the fundamental philosophy of the American constitutional form of government, it is declared to be the public policy of the State of Illinois that all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of this Act. (5 ILCS 140/1)

In practice, the FOIA falls short of the goal of assuring that “all persons” have “full and complete information.” The goals of FOIA are blocked by public officials who do not follow, or perhaps do not even know, their obligations under the law. And sometimes the goal of transparency is frustrated by changes to the law that deny the public access to documents for political  rather than policy reasons.

The Illinois Campaign for Political Reform (ICPR), founded in 1997 by US Sen. Paul Simon and Lt. Gov. Bob Kustra, has used FOIA for years to track lobbying by units of government around the state. In August of 2011, ICPR sent over 400 FOIA requests to units of government around the state. We found units that did not know their obligations under the law, who refused to send records in their possession, and who attempted to charge unauthorized fees. Over 43% of our requests went unanswered, getting no reply at all in clear violation of state law.

I. The Goals of FOIA

Illinois’ FOIA lays out a framework by which public bodies are obligated to provide access to documents collected or generated in the course of running government – the people’s business.

FOIA has been in Illinois’ law books for decades. It outlines a general process by which requested public documents must be provided and specifies which records are guaranteed to be open and subject to scrutiny. The law is based on the principle that taxpayers should be able to monitor the workings of their government – after all, it’s funded with their money.

Indeed, many times, government agencies provide records without implicating FOIA. Many government records already are available to the public through information desks, libraries, common repositories and public body websites. Whether it’s annual reports freely distributed on paper or on the Internet, or a friendly clerk who looks up a document and quickly hands over a copy, the public can often access records without using FOIA.

The statute sets minimum standards by which units of government must respond; it offers to the public a baseline by which FOIA requestors should expect to receive records. Units of government can and many times do supply records without the requestor filing a formal FOIA request. But far too many times, we found public bodies that violated the basic timelines and obligations set out in FOIA and failed to deliver records in a timely manner, as the law requires.

Once a public body receives a FOIA request, they have five business days in which to respond. This response can be in the form of a full reply including all documents requested, it can be a denial citing the statutory exemption that allows them to withhold the records, or a public body may take one 5-day extension.

Only in rare instances involving highly sensitive records should government information be denied to the public, under the terms of FOIA. These instances are spelled out in detail in statute. There are currently over two dozen exemptions in FOIA, and many others are written into other laws and statutes. Problems arise when public bodies assert overly broad interpretations of these exceptions, making what is supposed to be rare exceptions for highly sensitive records into something common and arbitrary.

In 2009, FOIA was changed in what were widely regarded as improvements designed to enhance public access to public records. The list of exemptions was culled and condensed, clarifying which records were not subject to public inspection and which ones were. The time for initial responses to requests was cut from 7 business days to 5. Fees for copying were capped in statute.

The updates to the law, which took effect in 2010, also created an administrative process for settling disputes about FOIA. Previously, where a requestor and a public body disagreed over which records were properly public, the only recourse was for the requestor to bring suit before a circuit court judge.  The 2009 revisions created a Public Access Counselor within the Office of the Attorney General, empowered to issue binding opinions about what is and what is not covered by FOIA.

The revised law also included provisions that FOIA requestors objected to, including a section setting out a longer timeline for responding to commercial requests for records. Since then, most of the FOIA changes enacted into law have curtailed access to records rather than expand access. The latest, enacted in 2011, allows public bodies to delay indefinitely responding to requests from people who file many requests. This law targets FOIA's most frequent users and, by virtue of their willingness to use FOIA, denies them the right to obtain access to public records in a timely manner.

II. How FOIA Works: The Results of Over 400 FOIA Requests

We found that many public bodies fail to comply with the statute, illegally or improperly denying access to bona fide public records. This has the result of increasing public frustration and skepticism of government.

In each of the last five years, ICPR has sent FOIA requests to a growing list of units of Illinois government, from towns and villages to school districts and transit agencies. Each time, our request has asked for the same information: copies of any contracts the public body has with professional lobbyists and records of billings.

The primary purpose of our requests was to obtain lobbying records. Illinois’ lobbying law was amended in 2007 to exempt units of government from the same disclosures laws that govern other lobbyist clients, and the rationale at the time was that governmental records were already available under FOIA. ICPR objected to the exemption, and so set out to obtain those records under FOIA to determine whether FOIA was, in fact, an adequate substitute regular lobbyist reporting through the Secretary of State’s office.

Response Time by Means of Sending Request

Request made via

Total number

Same Day

1-5 days

5-10 days

10+ days

No reply received

E-mail

214

25

94

13

7

75

Surface mail

187

0

57

19

13

98

 

Our research shows that FOIA is not an adequate substitute for lobbyist disclosure.

We also found that FOIA is riddled with problems of its own, ranging from outright non-compliance to unreasonable delay by the very units of government that are required to comply. Indeed, we received no reply at all from over 43% of the units to which we sent requests

In August of 2011, ICPR sent requests under FOIA to over 400 units of government around the state. We have been sending similar requests since 2007 to many of the same units of government. Indeed, some have told us they look forward to our requests every year. These requests are not surprises to most of the recipients. We contacted each unit by telephone in June and July in order to confirm their mailing address and to ask if they accept FOIA requests by e-mail. All told, we sent 187 requests by the US Postal Service, all placed into first class mail on Monday, August 8, and 214 requests by e-mail, sent in two roughly equal batches, at 10 am on Tuesday August 9 and Wednesday, August 10.

FOIA says that units of government must reply to a request within five days. This reply may be a denial of the request, a full response with requested documents, or they may take one extension if they need additional time to gather requested records. Although not every public body surveyed has contractual lobbyists, each public body is required by law to respond to the request (either with the provided records or explaining that there are no such records to be provided) within the statutory deadline.  By law, we should have received correspondence of some kind from all of these units by the end of August.

In fact, by the end of August we had received correspondence from just 56% of the units to which we has sent requests – a failing measure by any standard. Some types of units were better than others. Convention Centers, which accounted for 13 of the units we surveyed, had sent full replies to our requests from 11 Centers, an 85% response rate.  At the other extreme, charter schools, which were a new addition to our search this year, sent full replies only 23% of the time.

Response Time by Type of Public Body

Type of Public Body

Total Number

Same Day

1-5 days

5-10 days

10+ days

No reply received

Charter Schools

108

3

10

3

9

83

Convention Centers

13

1

7

0

3

2

Counties and County Agencies

40

2

17

5

3

13

Municipalities and City Agencies

136

6

67

14

5

44

Public College or University

52

5

26

5

0

16

School Districts

31

5

17

0

0

9

State Agencies

11

1

3

4

0

3

Other

2

0

2

0

0

0

ICPR’s findings come just months after state lawmakers and Gov. Pat Quinn approved a rollback to the law, instituting new roadblocks to some FOIA requestors. The new law allows public bodies to delay responding indefinitely to requests made by people who submit a large number of requests for records under FOIA.

III. Many public bodies appear unaware of their obligations under the law.

Compliance with FOIA is inconsistent and unacceptable across the state. In small ways, like exceeding the per-page copying charge limits the law allows public bodies to charge requestors to recoup exact charges, to larger ways, like requiring FOIA requestors to appear in person to obtain copies, to simply failing to respond to FOIA requests at all, units of government can and do block access to public records in violation of FOIA.

The good news:

  • 25 public bodies responded on the day we sent them the request (by e-mail). All of these denied having responsive documents.
  • A total of 172 (43.9%) public bodies responded within five days of the mailing, as statute requires. Note that the date by which a reply is due is triggered by the public body's receipt of the request, not the placement of a request into the mail. Requests sent by mail likely took a day or two to arrive, although we did receive two replies the day after we put requests into the mail. A total of 203 public bodies (51.9%) responded within 10 days of the mailing.
  • Several public bodies responded both via e-mail and in writing, including the Teachers’ Retirement System, City of Markham, Chicago Metropolitan Agency for Planning, Decatur Sanitary District, Village of Northfield, Dupage County Election Commission, Township of Thornton, Southwestern Illinois College, Chicago Heights/Elementary School District 170, Regional Transportation Authority and the Public Building Commission of Chicago.

The bad news:

  • Only 51.9 percent (208 of 401) responses were received within 10 days of ICPR’s mailing. Municipalities and city agencies, the largest bloc of units we surveyed, replied within 10 working days 64.0% of the time (87 of 136). Colleges and universities replied within 10 business days 69.2% of the time (36 of 52).
  • Six months after the FOIA requests were mailed and e-mailed, we have not received responses from 170 public bodies – over 42.3 percent of the public bodies surveyed overall. Some of these are very large public bodies, including the City of Chicago and Cook County.
  • McHenry County responded to a FOIA mailed Aug. 8 on Aug. 11, requesting $8 for 16 sheets of copying. Statute requires that the first 50 pages (black and white only; their copies were black and white) are free, and that pages in excess of that are to be charged at no more than 15 cents per page.
  • In response to ICPR’s request by surface mail dated August 8, PACE responded to a with a letter postmarked Aug. 15, asserting that the records were available for inspection, but that PACE would not provide records unless we appeared in person at their offices in Arlington Heights. Their reply said that records must be physically picked up in person at their headquarters in Arlington Heights within 10 days or they would be reshelved. PACE specifically asserted that responsive documents would not be mailed. We were twice unable arrange our schedule so that we might appear in person at PACE headquarters within their 10-day window, and so have obtained no records from PACE. ICPR has filed a request for review with the Public Access Counselor to determine whether a public body may require that a requestor appears in person an a location determined by the public body to obtain records.

Among public bodies surveyed:

  • Charter schools had the lowest response rate: only 16 of 108 responded within 10 working days. And six months later, 76.9 percent of charter schools surveyed have yet to respond at all (83 of 108).
  • Out of 136 municipalities, towns, villages and their agencies surveyed, 44 have yet to respond.
  • Out of 40 counties and county agencies surveyed, just 19 responded within five working days. Most (24) responded within 10 days, but six months later, we have yet to receive replies from 13 of the 40 (32.5%).

IV. The Goals of FOIA are Stymied by Unresponsive Units of Government

The ostensible goals of FOIA are to make all levels of government more transparent and accountable to citizens. In theory, FOIA should ensure that the public has access to government records in a timely manner. In practice, however, we found that filing a request through FOIA was not sufficient to ensure access records. Far too often, units of government did not respond within the time frames set by FOIA; more than four out of ten FOIA requests resulted in no response at all.

By law, the presumption is that government records are public records, and the public should know their rights to access government records. The public should also be prepared to demand compliance with the law in order to obtain records that the law says are rightfully public, even when units of government fail to comply with the requirements of FOIA.