ICPR says "no" to FOIA rollback, urges Legislature to use caution when considering changes

With just a few days remaining in the legislative session, lawmakers in Springfield are making a late push to roll back parts of the state's Freedom of Information Act, or FOIA.

The proposal, House Bill 1716, would allow public bodies to delay providing some individuals with records and charge businesses for access to records. ICPR testified before the Senate Executive Committee Memorial Day to ask them to reject this proposal and use caution when making changes to this critical law.

Here are our thoughts on the bill:

 

Testimony to the Senate Executive Committee on HB 1716

From the Illinois Campaign for Political Reform

Delivered by Whitney Woodward

May 30, 2011

Good afternoon. My name is Whitney Woodward and I'm with the Illinois Campaign for Political Reform, which is a non-partisan, non-profit public interest group that researches and advocates for accountability and transparency in government.

ICPR is a longtime champion and advocate of sunshine in government because such transparency helps the public to understand government's work and deters waste and corruption. While we are opposed to this legislation for reasons which I will outline in a moment, we note that there have been efforts to narrow components of this legislation from earlier drafts into more manageable and less alarming form, and we thank you for that.

We posed some questions to staff and suggested improvements shortly after this amendment was released yesterday, and we look forward to working with the sponsors and all interested parties on those concerns and other open government issues. Unfortunately, we were not invited to the discussion table when it came to the drafting of the amendment before you.

This bill would allow public bodies to place individuals who submit multiple FOIA requests into a new subcategory known as “recurrent requestor.” Once receiving a request from such an individual, public bodies would have no statutory limit on the amount of time they could take to comply with such open records requests. The only guidance that public bodies have is to provide requested records within a “reasonable” amount of time -- a term that is subject to interpretation. Considering that there have historically been issues with some public bodies responding to requests within a clear statutory time frame, we fear some public bodies may interpret “reasonable” to mean months or even years.

To avoid being labeled as a "recurrent requestor" under this bill, individuals can ask for multiple records within one FOIA letter, so as to have that letter count as only one request. However, a public body currently has currently has the ability to tell any requestor, under the existing statute, that his or her request for records is so broad or large that it would be “unduly burdensome” for the public body to comply. At that point, the public body has an obligation to try to work with the individual to narrow his or her request to a manageable size.

We are unclear how the existing “unduly burdensome” response will work if this “recurrent requestor” class is created, as individuals seeking to avoid being put into this new subclass may be inclined to roll multiple document requests into one letter.

Unfortunately, despite repeated requests for documentation of the purported problem the “recurrent requestor” provision would address, we haven't received anything other than an anecdote. We would hope that changes made to this or any law would come after a thoughtful study of the problem, to ensure that the fix ultimately proposed is narrow, so as to not hinder residents’ ability to access information. While we appreciate that the structure before you is much narrower than what was originally proposed, we still have concerns about how it will function and how requestors will be educated about this part of the law.

The other major change proposed in this legislation relates to commercial purpose requests. While ICPR is uncomfortable with plans to charge for access to information, as we feel that discourages public bodies from making public records available immediately or placing them online, we appreciate that this bill proposes a limited, largely structured fee system, for commercial purpose requestors only.

However, we raise the same question that we did just a few weeks ago, when testifying before this committee on the previous version of HB 1716. This proposal would give public bodies the green light to charge commercial requestors the "actual cost" of locating and transporting any public record that happens to be stored at an off-site contracted storage facility. But there is no statutory limit proposed on what this "actual cost" could be, and no requirement that public bodies give requestors an estimate of the bill in advance of complying with such a records request. It is unclear how the “actual cost” would be determined, or if that term would be subject to the interpretation of public bodies.

As we explained earlier, there are several easy fixes to this problem: Establishing caps on the amount of money a public body could charge for this task, requiring public bodies to inform commercial purpose requestors that compliance will come with this charge, and requiring public bodies to put their retrieval and transportation fee system in writing, so requestors could understand the charges they may face.

Given historical problems with FOIA compliance, including how per-page copying fees varied widely prior to a 2009 statutory update, it's important to provide public bodies with limits and direction on these new charges.

Thankfully, these retrieval and transportation fees do not apply to citizen or public interest requests, just commercial ones. It is important that these fees do not extend into non-commercial requests.

Another provision of this section which we believe may be problematic is the removal of all commercial purpose FOIA requests from the purview of the Public Access Counselor. While we are sympathetic to the Public Access Counselor’s budgetary concerns and large volume of requests for review, we fear this change may have the unintended consequence of encouraging public bodies to treat commercial purpose requests differently than non-commercial ones, because the courts would be the only opportunity for commercial requestors to get recourse.

Our understanding of the other change made to Public Access Counselor in Sec. 9.5, b, in this draft, with respect to removing an existing requirement that the Counselor review requests to deny information, are supported by the Attorney General's office. Because that change is made with the goal of increasing timely review of other FOIA issues, ICPR supports that change.

However, for the previously mentioned reasons, we will ask you for a "no" vote or to amend the bill as suggested above.