Ten years ago this May, lawmakers overhauled the Illinois Freedom of Information Act to, as then-Attorney General Lisa M. Madigan put it, “drag Illinois out of the Stone Age” in terms of openness and transparency.
However, Margaret Schohn, a Woodstock resident who has sought records from the McHenry County village of Ringwood since August 2017, had little praise for the law.
“It’s a joke,” she said.
Two of the most touted changes in the 10-year-old revamp were granting the public access counselor the power to issue binding legal opinions in public records disputes and granting litigants the ability to recover attorney fees if a dispute goes to court.
However, journalists, lawyers and private citizens still frequently complain about how public bodies from the smallest village to the Chicago Police Department can flout the law by simply ignoring requests, leaving litigation as the remaining but costly remedy.
“They know that they can break the law with impunity because there are no consequences,” Illinois Times reporter Bruce Rushton, who has been trying to obtain Illinois Department of Corrections records related to an inmate’s death since 2015, wrote in an e-mail. The suit he filed in 2017 is ongoing, as the defendant has filed an appeal with the Illinois Supreme Court.
A battle of that scale isn’t in the cards for 52-year-old Schohn, who lives on disability.
“I don’t have the money — and I think villages know that,” Schohn said.
Her story is more common than Rushton’s. Since 2010, the public access counselor has received 4,466 requests from journalists to look into FOIA disputes and 24,350 from members of the general public.
‘Unduly burdensome’
ProPublica reporter Jessica Huseman, who has filed open records requests in every state, said governments often make it difficult to file.
While in Illinois anyone can file an open records request via any medium, but in Virginia only residents and media outlets that broadcast or circulate in the state can request public records.
In Kentucky, New York-based Huseman had to track down a fax machine because not every agency in the Bluegrass State accepts e-mailed requests.
Once a request is filed, the interpretation of the rules can vary wildly, as Huseman found when trying to convince Virginia counties her online publication meets that state’s local media requirements.
“They’ll say, ‘You don’t count because you don’t have a print version of your paper. You’re just published online so you have to adhere to the residency requirement,’” she said. “And some counties were like, ‘Don’t worry about it, this is fine, we’ll fulfill your records requests.’”
In 2015, the nonprofit Center for Public Integrity assessed and ranked every state’s various open records rules. In giving Illinois an F for public access to information, the group cited the exemption for requests that would be “unduly burdensome” to meet, a vague term the group says local public bodies “regularly claim.”
“And worse, the state lacks any real teeth to enforce its open records laws,” the group wrote.
This still made Illinois the 15th most transparent state by the journalism organization’s criteria.
Illinois Press Association general counsel Donald M. Craven said FOIA officials are sometimes small-town, part-time employees ill-equipped to handle the law.
“On the other end of the spectrum, we have the Chicago Police Department and Chicago Public Schools that clearly have the personnel, that clearly have the resources to respond to FOIA requests. They just blatantly ignore them,” said Craven, who represents Rushton in his FOIA dispute with Illinois Department of Corrections.
Killing Laquan
After stories started swirling of a dashcam video showing a Chicago police officer shooting and killing a 17-year-old teen, the department received FOIA requests from journalists and private citizens across the country.
The police denied them all, telling the requestors they wouldn’t release the video while the investigation was ongoing. At least 10 requests for review were filed with the public access counselor, according to ProPublica.
Wall Street Journal reporter Zusha Elinson went to the public access counselor, which released an advisory opinion saying the police should release the video, a request the police department promptly ignored.
Independent journalist Brandon Smith went to court, retaining Matthew V. Topic of Loevy & Loevy, who within three months obtained the video’s release.
A judge in Illinois can penalize an agency that “willfully and intentionally failed” to comply with FOIA, but Topic, who has a FOIA practice and is the outside legal counsel for the Better Government Association, could recall only one case where the statutory penalty was applied. It was a case involving a fired Harvey police officer whose request for records from the city was ignored.
“They (Harvey municipal officials) really just painted a picture of being extremely obstructionist, so the court did award the penalty,” Topic said.
Madigan created the public access counselor in 2004, but the post was toothless until the 2009 revamp. Sarah L. Pratt became public access counselor in 2013 after filling the role in an acting capacity for two years. The office has a staff of 22, including 12 attorneys.
Between Jan. 1, 2010 — when the power to grant binding opinions took effect — and Dec. 31, 2018 — the most recently available data — the public access counselor received 29,789 requests to intervene in FOIA disputes, according to the office’s nine most recent annual reports. They also received 2,999 requests to look into possible Open Meetings Act violations.
Of those 32,788 requests, the office issued 123 binding opinions, according to the office’s website. The power touted as the teeth behind the 2009 FOIA revamp is used in 0.4 percent of cases.
A spokeswoman for the attorney general’s office said the public access counselor “performs thorough research” when it is asked to weigh in on a dispute.
“When deciding whether to issue a binding opinion, the public access counselor takes into account whether the public body in question has a history of violating transparency laws and whether the matter involves an area of the law that needs to be reinforced or clarified,” said spokeswoman Annie Thompson.
Thompson added that the public access counselor continually strives to improve “to promote transparency.”
“If at all possible, I skip the PAC because — there is no way to put this nicely — I’ve learned it’s almost always a waste of time,” Rushton wrote.
To penalize or not?
The public access counselor did issue a binding opinion in Schohn’s dispute with Ringwood in February. They found the village did not respond to Schohn’s requests and, separately, also did not respond to the public access counselor’s e-mails, letters and voicemail messages attempting to look into the matter.
“That’s like a slap in the face,” Schohn said. “I’m not sure what would happen if I ignored a letter from the attorney general, but it probably wouldn’t be good.”
Ringwood’s FOIA officer, Village Clerk Roni Gaddis, later said she has given Schohn everything she has requested.
Again, the path leads one way.
“If you’re denied, your only real option is to go to court, and that’s not a great state of affairs for the public,” said Adam Marshall, the Knight litigation attorney for the Reporters Committee for the Freedom of the Press.
Litigants under Illinois law can recoup attorney fees and costs if they prevail. Schohn, who can’t work due to medical issues, is concerned about the initial outlay.
“That’s great, but who has the pockets to take a case to court like this?” Schohn said.
The city of Chicago’s online data portal listed $259,002 paid out in 2017 for “FOIA Violations” and $190,863 in 2018 for “FOIA Actions,” categories that include fees and costs, but also judgments and settlements. Without the ability to get fees and costs, Huseman and Topic said, there is little incentive for a citizen to pursue time-consuming, expensive litigation.
Twenty-eight other states have some kind of penalty provision under FOIA, either through attorney fee recovery or civil and criminal penalties. In Washington state, for example, public bodies can be fined up to $100 for each day they don’t turn over a public record.
“If we had a similar system here, we could eliminate the PAC tomorrow and see a lot more compliance,” Rushton wrote. “The law here isn’t that complicated, but the way it’s written, with myriad exemptions and no penalties, encourages folks to look for loopholes.”
There are no criminal penalties in Illinois for violating FOIA, although Topic did note there are criminal penalties for destroying public records.
Craven expressed doubt that criminal penalties would ever be added to the Illinois statute. He said there would be too much concern that the part-time, small-town officials would be jailed under a measure meant to catch more egregious offenders.
“Perhaps a small step some place in the middle would be an appropriate measure for the General Assembly to consider,” he said.
What’s next?
New Attorney General Kwame Y. Raoul pledged in March to get more public access counselor funding from the legislature so the office can expand.
Rushton sees that as a waste of money.
“The AG can expand the PAC’s office until there are no lawyers left to hire and nothing, in my opinion, will change,” he said.
Both Topic and Rushton said that, with the right penalties in place, public bodies will have an incentive to properly release records.
“That’s where we want to get to. That’s really the idea behind the statute in the first place,” Topic said.
As of March 19, there are 199 pieces of legislation pending before the current General Assembly that would affect FOIA in some way. Bills that offer penalties, including one that could fine public bodies up to $1,000 a day, offer judges too much discretion for Rushton’s taste. The actual fines could be as little as a penny a day, depending on the judge.
“Can’t say it strongly enough: If the Illinois AG was truly serious about FOIA, he’d use his bully pulpit to push meaningful fines through the General Assembly,” Rushton wrote. “Otherwise, we’ll just waste millions of dollars on lawyers with no improvement.”