The purpose of the Illinois Freedom of Information Act (“FOIA”), effective since July 1, 1984, is to open governmental records to the light of public scrutiny. Day v. City of Chicago, 388 Ill. App. 70 (1st Dist. 2009); 5 ILCS 140/1 (2008). Moreover, FOIA establishes the rights and limitations of the public to obtain and inspect a wide range of documents. 5 ILCS 140/3 (2008). Thus, any potential changes in the provisions of FOIA would effect every public body including, municipalities, school districts, and law enforcement agencies. In recent months, FOIA has been at the forefront of case law and proposed legislative amendments. Therefore, government entities should brace for a change in FOIA, since reform seems inevitable. The likely outcome of the changes may result in more public access and greater participation on the part of government bodies.
In the month of May 2009 alone, the Illinois Supreme Court rendered a verdict in a matter directly interpreting FOIA, the Illinois Attorney General, Lisa Madigan, released suggested revisions to FOIA, and the Illinois General Assembly staff drafted a different version of revisions to FOIA that has begun circulation through the House and Senate.
Evaluating the current version of 5 ILCS 140/7, the Illinois Supreme Court handed down a decision on May 21, 2009, regarding FOIA exemptions. Stern v. Wheaton-Warrenville Community Unit School District 200, Docket No. 107139 (filed May 21, 2009). In 2006, appellant Mark Stern, a Wheaton resident, submitted a FOIA request to his local school district, asking for a copy of the superintendent’s employment contract. The District’s record keeper denied Stern’s FOIA request, stating that the contract was in the superintendent’s personnel file and was therefore exempt from disclosure. The Illinois Attorney General’s Public Access Counselor sent a letter to the District stating that employment contracts are “public information” under FOIA.
Stern’s request was renewed and again denied. Stern appealed to the school board president, but was again denied his request. Once again, the Attorney General’s office reiterated its position to the District, but to no avail. Thus, Stern filed a complaint seeking injunctive relief under FOIA.
The District argued that an employment contract included in a personnel file was per se exempt from disclosure under 5 ILCS 140/7(1)(b)(ii). Stern argued that case law found only disciplinary records, and not employment contracts, were exempt from FOIA disclosure. Additionally, Stern argued that the superintendent’s contract was relevant to his duties to the public. The circuit court found that the superintendent’s contract was part of his personnel file and was, thus, exempt from disclosure under 5 ILCS 140/7. Therefore, the circuit court granted summary judgment in favor of the District.
However, the Second District Appellate Court reversed the ruling and remanded the matter to the circuit court. The District petitioned for leave to appeal and the matter was heard by the Illinois Supreme Court. In its analysis, the court stated that it was clear the District was a “public body” and the contract was a “public record” by virtue of FOIA. 5 ILCS 140/2(a)-(c) (2008). Thus, the court was left to decide whether or not the employment contract was exempt from FOIA disclosure under those exemptions set forth in 5 ILCS 140/7. The court held that the contract was not exempt from disclosure. The Illinois Supreme Court stated:
[t]he fact that an employment contract may be physically maintained within a public employee’s personnel file is insufficient to insulate it from disclosure. The purpose of the personnel file exemption is to prevent the Act from being used to violate personal privacy, and the Act expressly provides that ‘[t]he disclosure of information that bears on the public duties of public employees,’ such as employment contracts, ‘shall not be considered an invasion of personal privacy,’ then a contract’s physical location within an otherwise exempt record is irrelevant.
Stern v. Wheaton-Warrenville Community Unit School District 200, Docket No. 107139, page 13 (filed May 21, 2009).
In effect, the court’s holding in Stern supports a broad interpretation of non-exempt “public records” and prevents public entities from denying a request for documents simply based on the documents location within a personnel file. In light of Stern, government bodies may have to reevaluate whether or not certain documents within a personnel file are properly exempt from FOIA disclosure before denying a FOIA request.
Almost simultaneous to the Stern decision, local lawmakers have taken issue with the current version of FOIA. On May 12, 2009, The State Journal-Register reported that Attorney General Lisa Madigan’s office had released a revised version of FOIA. The Attorney General’s rewrite attempts to address criticized “loopholes” in the law. Eric Naing, Lisa Madigan proposes FOIA rewrite, The State Journal-Register, May 13, 2009, available at www.sj-r.com.
The Attorney General’s proposal would decrease the number of days that an agency would have to respond to a FOIA request, from seven days to five days, with a possible five day extension. Also, if the agency failed to respond in the allotted five days, it would waive any objection to the request as being “unduly burdensome”. Id. The Attorney General’s proposal would also distinguish requests made for commercial gain by allowing twenty-one days for response to such requests. Id.
The proposal also calls for imposition of fines of $100-$1,000 against public agencies willfully failing to comply with record requests. Adriana Colindres, FOIA proposal draws rapid responses, The State Journal-Register, May 16, 2009, available at www.sj-r.com. Also, individuals who knowingly willfully violate FOIA could be convicted of a Class C misdemeanor under the Attorney General’s proposal. Id.
Another feature of the proposal is that each public body would have to designate and train one or more Freedom of Information officer to respond to the FOIA requests. Id. The proposal would also address attorney’s fees and designate more power to the Public Access Counselor to resolve disputes. Id.
The Attorney General’s proposal was drafted with input from the Illinois Reform Commission, the press association, law-enforcement agencies, municipalities, and various government watchdog groups. Editorial, You Call This Reform? The Chicago Tribune, May 22, 2009, available at www.chicagotribune.com/news/opinion.
Still, some concerns were raised over the proposed revisions. For example, government units may find it difficult to place people in the required “FOIA officer” position in light of the suggested criminal penalties and fines. Adriana Colindres, FOIA proposal draws rapid responses, The State Journal-Register, May 16, 2009, available at www.sj-r.com. Nevertheless, others herald the proposal as “much needed teeth to the law”. Eric Naing, Lisa Madigan proposes FOIA rewrite, The State Journal-Register, May 13, 2009, available at www.sj-r.com.
For government bodies, compliance with the proposed revisions would require a more intricate understanding of the FOIA provisions and careful attention to response times. The Attorney General’s proposal was to be outlined in House Bill 1370, with hopes to accomplish legislative change before the session’s end (at press time this Bill was in the Illinois House’s Rule Committee). Chris Rizo, Madigan nearing completion on FOIA rewrite, LegalNewsline.com, May 11, 2009, available at www.legalnewsline.com/news.
Only days after the release of Attorney General Lisa Madigan’s proposed FOIA revisions, a different draft of revisions, written by The Illinois General Assembly legislative staff, began circulation through the House and Senate. Phil Kadner, Time to fight for reform in Illinois, Southtown Star, May 22, 2009, available at www.southtownstar.com/news/kadner. This draft proposal would require governmental bodies to deliver all information in print rather than electronically. It also includes a provision that “exempts personnel files, medical files and ‘similar files’”. Madigan’s version of FOIA rewrite needs to be Ok’d, Rockford Register Star, May 21, 2009, available at www.rrstar.com.
Another provision would “prohibit publishing addresses with police blotter items” and “shield address information on arrestees and public employees”. Id; Editorial, More secrecy and clout? No, stop it now, Daily Herald, May 22, 2009, available at www.dailyherald.com/story. The draft proposal would also “keep [government] settlements private”. Id.
Notably, this draft proposal does not include the criminal penalties for public officials, which are outlined in the Attorney General’s proposal. Chris Rizo, Newspaper group endorses Madigan’s FOIA rewrite, LegalNewsline.com, May 22, 2009, available at www.legalnewsline.com/news. Also different, this draft proposal would allow the “public access counselor to resolve disputes “involving the executive branch only.” Editorial, You Call This Reform?, The Chicago Tribune, May 22, 2009, available at www.chicagotribune.com/news/opinion. In effect, this proposal is apparently more limited in required production under FOIA. It also effectively precludes those penalties that The Attorney General’s proposed revisions seek to add.
While it is currently uncertain which of the proposals will become law, or whether either proposal will be enacted, either proposal would certainly result in changes for government agencies and how they handle FOIA requests.
The proposed changes may require government bodies to perform additional training on FOIA’s provisions. Likewise, the proposed changes of the Attorney General and recent case law under Stern may also require broader disclosures. This will force governmental bodies to assure and support any FOIA request denials by spelling out the exemptions protecting the documents.
Since neither proposal has been adopted, it is impossible to determine the certain future of FOIA. However, it seems certain that FOIA will undergo change in the near future. As the legislative session nears its end, government bodies should pay close attention to possible changes in FOIA.
For information on FOIA amendments approved or opposed by the Illinois Municipal League go to www.iml.org and click on the link for bill positions. For updates and recent articles on the topic of FOIA go to illinoispress.org or call Querrey & Harrow, Ltd.
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Jessica O'Neill is an associate in Querrey & Harrow's Chicago office and concentrates her practice in general litigation. If you have any questions regarding this article, please contact Jessica via joneill@querrey.com or via 312-540-7596.
