Two years after reforms of Illinois’ public information laws went into effect, members of the public — not the media — remain the most prolific users of the Freedom of Information Act.

Two years after reforms of Illinois’ public information laws went into effect, members of the public — not the media — remain the most prolific users of the Freedom of Information Act.


Attorney General Lisa Madigan reported that of the 2,561 requests her public access counselor received in 2011 for review of a public body’s response to a FOIA request, 2,000 came from the public while 171 came from the press and 390 were submitted by others.


The public access counselor is the attorney general’s point person on FOIA and the state’s Open Meetings Act. The public access counselor has the authority to make binding decisions when there is a dispute between someone who requests documents under FOIA and a public body, such as a city council or school board, over whether the documents are public record.


Josh Sharp, director of government affairs for the Illinois Press Association, said the public’s frequent use of FOIA is no surprise any longer.


“When we first started the office of public access counselor, we were actually surprised at who was turning to it for help,” Sharp said. “Members of the media and others who use public information in their business are in very small minority for who the public access counselor helps out. That’s been the trend for five or six years.


“It’s (FOIA) more for everybody than for the media. FOIA is one of the tools reporters use, but for some people, it’s the only tool they have.”


Madigan’s chief of staff, Ann Spillane, said the citizens who use FOIA tend to be a diverse group.


 “It’s wildly diverse — it ranges from people who are very active in their local governments … to people who there’s one issue in their community that they want to get information on,” she said.


 


Exemption eyed


The public access counselor position has worked well, although like many things in state government, it is constrained by a need for more staff and funding, Sharp said.


Larry Frang, executive director of the Illinois Municipal League, which was skeptical of the new law, said he has not personally heard a lot of complaints from members of his association about the law being too cumbersome, but he is sure there have been some.


“I think it’s just too early to tell,” he said.


One area of FOIA that the IPA wants to see eventually revised is the exemption for government to withhold documents because they are of a “preliminary” nature before a decision has been made.


This exemption has come under increasing scrutiny in Chicago because Mayor Rahm Emanuel has used it in declining to release emails he received concerning his efforts to put red-light cameras near schools in what he said was an effort to improve public safety and prevent traffic deaths of children.


Emanuel’s office has declined to release most emails and said they are akin to private telephone conversations the mayor might have about an issue.


“I understand public bodies and public officials need people to be candid in their opinions,” Sharp said. “But the exception is so broad that you can virtually fit anything you want in it.”


Spillane said narrowing the “preliminary” exemption came up in 2009 talks, but resistance was stiff.


“I’ve spent a lot of time talking to the press association about this,” she said. “It is an extremely broad exemption. Ultimately, we would be open to think of ways to narrow it. It’s a bit of struggle to figure out how to draft that.”


 


‘Let it work’


Some states, such as Florida, which is considered by open-government advocates to have a model FOIA law, do not have such an exemption. To remove the exemption from Illinois law means a shift in the state’s attitude on public information will have to occur, officials in Madigan’s office said.


“I talked to them extensively during the rewrite,” Spillane said of Florida officials. “Some of the people there said, ‘It’s (preliminary documents) not that interesting. This is how we do our work.’”


“We’re just a couple years into this new law,” said Natalie Bauer, communications director for Madigan. “Just with every matter that we put out there … we’re chipping away at it (the state’s culture). I think you’re starting to see gradual progress on most people’s part.”


While the FOIA revisions were hailed as landmark when lawmakers approved them in 2009, some legislators immediately began to modify the modified law. Changes were approved the following year that exempted public-employee personnel evaluations. Unions argued that allowing the public to see such evaluations violated employees' privacy. The changes were opposed by the attorney general and the press association.


“The legislature needs to take a step back … and let it work,” Sharp said.


 


Chris Wetterich can be reached at 788-1523.


 


By the numbers


A breakdown of the cases received by the public access counselor.


Year; total no. of cases; request for review of denied records; no. of reviews requested by public; no. of reviews requested by media; no. of reviews requested by others


 


2010; 5,164; 2,561; 2,000; 171, 390


2011; 5,228; 1,744; 1,295; 156; 293


 


A case to watch


In 2011, the public access counselor issued a binding opinion that electronic documents held on city of Champaign employees’ personal electronic devices were public even though they were not on city-owned computers.


The case stemmed from a News-Gazette reporter’s request for electronic communications, including emails and text messages, sent between city council members and the mayor during city council meetings and study sessions.


The city has appealed the decision to the circuit court. Spillane said the attorney general has won most, if not all, cases where the public access counselor’s opinion has gone before the courts.


 


What the revisions did


The 2010 FOIA revisions made several key changes:


--They shortened the amount of time governments had to respond to requests from five to seven days.


--They allowed courts to fine public bodies $2,500 to $5,000 if they violate the law. A Rockford judge recently imposed the first such fine against the Rockford School District.


--Judges have to award attorney’s fees to those who sued and prevailed in circuit court in FOIA cases.


--They bars governments from charging exorbitant copying fees.


--They narrowed and redefined exemptions governments can use to get around having to release documents.