Illinois’s New Freedom of Information Act: A Delicate (and Costly) Balancing Act for Libraries
Phillip Lenzini, Kavanagh, Scully, Sudow, White & Frederick, P.C.
This major revision to the state’s Freedom of Information Act (FOIA) will take effect on January 1, 2010, and ushers in a series of new requirements for libraries and all public bodies in Illinois. In the past, this type of legislation tended to be something that libraries responded to when the need arose, i.e., when they received a request for information. Even if that was not always the best course and some advance preparation might have been advisable [see “Libraries as Sanctuaries for Criminals,” ILA Reporter, December 2006], waiting for the shoe to drop is no longer an option.
While we are unable to quantify the number of FOIA requests received by Illinois’s libraries in the recent past, the terms and conditions of the new law are likely to see those numbers increase. Further, the language of the law is confusing in terms of what is and what isn’t exempt, leading to increased compliance costs not only due to the number of requests, but in staff time and legal fees.
This article summarizes the context of the Act and some immediate consequences for libraries, but for a much more detailed discussion, see a longer version here.
Libraries Required to Appoint Freedom of Information Officers
Compliance requirements for public bodies, whether they ever receive a request for records or not, are expanded under the new law. The most significant and onerous change is the new requirement that each body must designate one or more “officials or employees to act as its Freedom of Information officer or officers.” [140/3.5]
The FOIA designated officer(s) are required, prior to July 1, 2010, to undergo an “electronic training curriculum” to be developed by the Public Access Counselor, a newly designated position within the Office of the Attorney General. Further, they must successfully complete the electronic training curriculum annually thereafter or if newly designated, they must do so within thirty days of assuming the position. [140/3.5(b)] This requirement and the other expanded provisions of the Act increase both the mandate and the compliance costs to public bodies and the taxpayers that support them.
Background of the Legislation
The bill was an initiative of the Illinois Attorney General in conjunction with the Illinois Press Association and various other groups. Several of the final changes to the bill were introduced during the last week of the legislative session and adopted with little or no debate. Until the governor signed the bill in August 2009, there were continuing efforts to suggest changes and improvements to the legislation.
Throughout the drafting process, the Illinois Library Association voiced a number of concerns and requested changes in this bill. Months of long work produced significant improvement to the original version, but the law is far from perfect. While we support the overall goal of access to information, the specific provisions are both difficult to define and costly to enforce.
What Records Are Public?
One of the changes under the new law is the specific inclusion of “electronic communications,” with all that implies. Additionally, the law expressly states that all public records are presumed to be open for inspection and copying. Any assertion by a public body that a record is exempt from disclosure must show that the records sought clearly fall within the narrow reading of the exemption and that a reasonable person would be convinced by that interpretation or application.
The law also imposes complex regulations for how a library or other body must respond if a request for a public record includes personal information, the disclosure of which would result in an invasion of privacy. The costs of compliance will not only include copying, but also time-consuming review by both library staff and, most likely, legal counsel.
The Role of Exemptions
On the surface, making some categories of information exempt would seem to be a positive distinction, but in practice, confusing and contradictory exemptions add to both cost and compliance. Compared to the federal government FOIA, which has only a handful of exemptions, but which are broadly written and easy to apply, the “narrow approach” continued and expanded by Illinois is misguided to say the least, and terribly costly to taxpayers at best.
With forty-three enumerated exemptions, interpretation of what is and is not exempt will lead to increased costs of FOIA compliance, both in staff time and attorney consultation. Each exemption narrowed, or rewritten or altered, dramatically increases compliance costs to local governments and their taxpayers, even when their true goal is actual compliance.
Fee Structure for Responses
The law stipulates maximum copying fees for requests of more than fifty pages of $.15/page, with no charge for copies on a request of less than fifty pages. If copies are in non-standard size (other than 8-1/2x 11 letter or legal) and/or in color, the “public body may not charge more than its actual cost for reproducing the records.” But as a far more significant cost will likely arise in retrieving and reviewing the records, the real burden occurs in the law’s prohibition of including any search fees, review fees, or any personnel costs. [140/6(b)]
For requests of a record maintained in electronic format, the public body shall furnish the copy in the requested format if feasible. If not feasible, then it must be provided in the electronic format in which it is maintained, or in paper format, at the option of the requester. If provided in electronic format, there can be no charge for the search, review, or personnel costs of reproducing the copies, and the public body may only charge the actual cost of purchasing the recording medium, i.e., the disc, diskette, tape, or other medium. [140/6(a)]
Processing and Responding to Requests
Requests can be submitted in any format, and must be “immediately” forwarded to the library’s FOIA officer(s). While libraries cannot require requests to be submitted on a standard form, we recommend making every attempt to have requesters fill out a Request Form to help ensure that all of the information needed is provided and necessary procedures and timelines are followed. Libraries may not require the requester to specify the reason or purpose of the request “except to determine whether the records are requested for a commercial purpose or whether to grant a request for a fee waiver.” [140/3(c)]
Except for “commercial requests” (those that result in “sale, resale, or solicitation or advertisement for sales or services”), the public body must comply or deny in writing within five business days of a FOIA request, unless the time is properly extended. Failure to deny, comply, or extend within those five days is considered a denial of the request. One extension of an additional five business days may be used, if a request is unusually large or burdensome (e.g., records stored in whole or in part at other locations, records requiring examination and evaluation as to exemptions or requiring appropriate deletions from them, etc.). In the event of such additional time, the public body must, within the initial five-day period, notify the requester of the reasons and the date by which the documents will be available. If the public body and its FOIA officer(s) intend to deny a request, it must notify the requester in writing of the denial and the specific reasons, including “a detailed factual basis for the application of any exemption claimed.” [140/9(a)]
Requests for “commercial purposes” require a response within twenty-one days and libraries may charge additional costs. [140/3.1(b)]
Other New Provisions
While the old law had provisions for suit in the event of a denied request, the new law takes things a step or two further. If a requester is denied access and prevails in litigation, the court must award the requester “reasonable attorneys’ fees and costs.” Additionally, if a court determines “that a public body willfully and intentionally failed to comply with this Act, or otherwise acted in bad faith, the court shall also impose upon the public body a civil penalty of not less than $2,500 nor more than $5,000 for each occurrence.” [140/11(j)]
Another major provision of the law is statutory creation of a Public Access Counselor (PAC) in the Illinois Attorney General’s office. While the position has existed since 2004, it was not statutorily created or authorized until passage of this Act. The PAC will have, among other statutory powers, the power to:
The Act also makes changes to the Open Meetings Act (OMA), such as requiring training of designated employees, similar to that required by the FOIA. The other major change to the Open Meetings Act is that if any person believes there has been a violation of the Act, that person has sixty days to file a Request for Review to the PAC.