Walter J. Zukowski and Anthony R. Phelps
Zukowski Law Offices
Peru, Illinois
The Freedom of Information Act and the Open Meetings Act have received
substantial press as a result of SB0189, recently signed by Governor
Quinn. The Law took effect on January 1, 2010 in the form of P.A.
96-0542. All public bodies, including school districts, should be
mindful of the changes promulgated in the Acts to ensure
compliance.
FREEDOM OF INFORMATION ACT (FOIA)
I. Statements of Policy. In the introduction, the General Assembly included the following language to indicate its view of the “purpose” behind the Freedom of Information Act. The General Assembly “declares that it is the public policy of the State of Illinois that access by all persons to public records promotes the transparency and accountability of public bodies at all levels of government.” 5 ILCS 140/1. Few would disagree with this perspective. However, the intent of changes goes even further where the statute directs that “providing records in compliance with the requirements of this Act is a primary duty of public bodies to the people of this State and this Act should be construed to this end, fiscal obligations notwithstanding.” 5 ILCS 140/1 (emphasis added). From this perspective, it is the openness of the files of the public body that is the main goal, not the duties that the public bodies were established to perform.
II. Freedom of Information Officer. (“FOI Officer”) This new position is created within the public body for administering the Freedom of Information Act. FOIA requires that the public body provide one or more “officials or employees” to serve in this position. We suggest appointing more than one person to that requests will be addressed during the absence of one officer.
The FOI Officer “shall receive requests submitted to the public body under this Act, ensure that the public body responds to requests in a timely fashion, and issue responses under this Act.” 5 ILCS 140/3.5(a). Most public bodies already had someone serve in this position under the old law. However, the new law expressly refers to the position as an “officer” of the public body and expressly defines the duties of the office. Nevertheless, one problem with the establishment of this “office” is the determination of whether it will lead to incompatibility if held by other officers of the public body. The General Assembly provides no guidance on this point.
a. The Officer “shall develop a list of documents or categories of records that the public body shall immediately disclose upon request.” 5 ILCS 140/3.5(a). These are records, in the determination of the FOI Officer, which will be disclosed without contestation.
b. The FOI Officer has specifically delineated duties to perform once a request is received. The officer must (1) note the date the public body received the written request; (2) compute the day on which the response will expire and make a notation on the written request; (3) maintain an electronic or paper copy of the written request (including all documents submitted) until complied or denied; (4) create file for retention of the original request, copy of the response, a record of other written communications with the requester, and a copy of other communications. 5 ILCS 140/3.5(a). These duties create a problem: the process for the FOI Officer’s duties creates more records of the public body. This may likely create records retention issues.
c. The statute sets forth timelines for training. The initial FOI Officer must complete an electronic training course within 6 months after the effective date of the statute. An annual training program must also be completed. If a new FOI officer is appointed they have 30 days to receive the proper training. 5 ILCS 140/3.5(b).
d. The statute requires a website notation of the FOI Officer. Previously each public body must “prominently display” a brief description of itself and a brief description of the methods for the request of information. Now this information must also be kept on a website, if the public body maintains such a website. 5 ILCS 140/4(c).
III. Life Cycle of a “Typical Request” under the New Law
(one where the public body does not wish to use an exception).
The same general rule for compliance is applied in this Act, as “[e]ach
public body shall make available to any person for inspection or
copying all public records, except as otherwise provided in Section 7
of this Act.” 5 ILCS 140/3(a). Though this rule carries over from
the previous legislation, several changes follow:
a. The statute provides that requests shall be made in writing and directed to the public body. 5 ILCS 140/3. The requests may be received by “personal delivery, mail, telefax, or other means available to the public body.” 5 ILCS 140/3. Though not expressly provided, this likely will include email.
b. The old law required only a written request. The FOIA amendments provide that“[a] public body may honor oral requests for inspection or copying.” 5 ILCS 140/3. Because of the need for specificity in a request, it is probably the best practice to continue to require a written request.
c. The public body may not require that a request be submitted on a standard form or require the requester to specify a purpose. 5 ILCS 140/3(c) (the only exception provided is for “commercial purposes”).
d. Public body shall comply with or deny request within 5 business days, instead of 7, unless an extension is received. Failure to respond, deny, or extend time within 5 days shall all constitute a denial (anything besides compliance). In addition, the public body may seek an extension under the same conditions as before, except extension is for only 5, instead of 7 business days from the original due date. 5 ILCS 140/3(d); 5 ILCS 140/3(e). The public body and requester may agree in writing to extend the time for compliance for a period to be determined between the parties. 5 ILCS 140/3(e). This practice should be liberally employed.
e. If the public body fails to respond to a request within the time period permitted by the statute, then it is deemed a denial. If the public body thereafter responds, it may not impose a fee for copies provided. If the public body fails to respond, it may not treat the request as “unduly burdensome.”
IV. Public Access Counselor. One of the most
significant changes was the advent of the office of the “Public Access
Counselor,” established in the Office of the Attorney General
(hereinafter “PAC”). This position becomes relevant when a public body
seeks to deny a request, or in some circumstances, seeks to utilize two
particular exemptions to disclosure. A person whose request
is denied may, within 60 days of the date of denial, file a written
request with the PAC. 5 ILCS 140/9.5.
a. Review Procedures for Denial of a Request for a Record. If a public body denies a request, it must notify the requester in writing of the decision to deny (within the 5 day time limit for responding to the request, or the additional 5 day period in the circumstance of an extension). The notification of denial shall contain the reason for denial, a detailed factual basis for the application of any exemption claimed (including citation to supporting legal authority), the names/title of persons responsible for the denial, inform the requester of the right to review by the PAC, and inform the requester of the right to judicial review. 5 ILCS 140/9.
The requester has two avenues to seek relief: (1) review of the PAC or (2) review in Circuit Court. The previous law provided a means for an appeal to the head of the public body after the initial denial. This requirement has been repealed.
b. PAC Review. FOIA sets forth a review procedure for denials. The requester denied by the public body must file for review with the PAC not later than 60 days after the final date of denial. Once the PAC receives a written request from a requester, it will determine if “further action is warranted.” The PAC has 7 days to make this determination from the date the written request is received by the PAC. If no further action is warranted, the public body is not required to take any further action. Note that at this point the PAC will only look at the requester’s information.
i. If further action is warranted, the PAC forwards a copy of the request to the public body (within that same 7 day period after receipt). The copy shall accompany a request for records and other documents of the public body for the PAC’s review. The public body must provide the copies of the requested records within 7 days after receipt of the request from the PAC. The Attorney General has subpoena power to compel production of the documents if the public body fails to provide them. This will be an in camera inspection by the PAC to determine whether there is a justification for a denial of the request. The PAC will not disclose the records to the requester.
ii. Within that same 7 day period (after receipt of the copy of the request for review and the request for production from the PAC), the public body may answer the allegations of the request for review in the form of a letter, brief, or memorandum. It is crucial that the taxing body avail itself of this opportunity. The answer will provide the PAC with a clear understanding of the taxing body’s concerns, not just those of the requester. The requester may respond to the answer within 7 working days after its receipt of the answer. The PAC will forward a copy of the public body’s answer to the requester, with any confidential information to which the request pertains redacted from the copy.
A problem will arise regarding the extent of the information redacted in the answer. As one may expect, if the main topic of the answer is about a record and why it is exempt, it may be difficult to redact information without redacting the entire document. For this reason, the answer must be carefully drafted to ensure that the confidential information is not unnecessarily leaked.
iii. The PAC shall issue an opinion in response to the request within 60 days after its receipt. The PAC has authority to extend the time by no more than 21 days, and also has the authority to resolve the matter without a binding opinion by issuing non-binding opinions or by mediation. Only binding opinions are subject to administrative review. 5 ILCS 140/11.5.
iv. After issuance of a binding opinion finding a violation, the public body may (1) comply with the directive of the opinion, or (2) initiate administrative review. After issuance of a binding opinion finding no violation, the requester may initiate administrative review. 5 ILCS 140/9.5; 5 ILCS 140/11.5. Administrative review of any binding opinion must be filed only in Cook or Sangamon County. 5 ILCS 140/11.5.
v. The PAC may also issue advisory opinions. These opinions will be issued in response to written request from the head of the public body or the attorney of the public body. The public body’s reliance, in good faith, on such opinions relieves it from liability under the FOIA. With little initial precedent in the early years of this process, frequent use of the request for an advisory opinion may be to the taxing body’s benefit.
c. Circuit Court Review. The requester is free to file suit in Circuit Court at anytime during the PAC review process, before the issuance of a binding opinion. 5 ILCS 140/9.5(f); 5 ILCS 140/11. This suit may be initiated in the county where the public body is located. This court review process is just like the process set up in the prior version of the law.
i. The General Assembly made an important change regarding attorneys’ fees. Previously, the law required that if the requester “substantially” prevailed they may get attorneys’ fees. Now, the law provides that if the requester prevails, “the court shall award such person reasonable attorneys’ fees and costs.” 5 ILCS 140/11(i). If the requester prevails on any issue (even if they do not substantially prevail in the suit), they may be awarded attorneys’ fees.
ii. There are also penal provisions for “willful violations” for any action in the Circuit Court. The law provides that if the public body “willfully and intentionally failed to comply with [the] Act . . . 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.” 5 ILCS 140/11(j).
d. PAC Review When Claiming Particular Exemptions. The PAC must give “pre-approval” before the public body may utilize two particular exemptions. If the public body claims an exemption as (1) clearly unwarranted invasion of personal privacy, or (2) preliminary drafts, notes, recommendations, then the public body must provide notice to the requester and the PAC within the time provided for a response (5 days) of its intent to deny the request. The “notice of intent to deny” shall include a copy of the request, the proposed response, and a detailed summary of the public body’s basis for asserting the exemption.
Within 5 days of receiving the notice from the public body, the PAC shall notify the public body whether “further inquiry is warranted.” If no inquiry is warranted the public body may deny. If inquiry is warranted, then the PAC will proceed under the review procedures set forth above.
V. Commercial Requests. Generally the public body may
not require that requester specify a purpose when seeking documents
under FOIA. However, the public body may ask for the purpose to
determine if the request is for a “commercial purpose.” The term
“commercial purpose” is defined by statute to include the use of
records “for sale, resale, or solicitation or advertisement for sales
or services.” The language exempts news media, non-profit,
scientific and academic organizations if they meet certain
conditions. 5 ILCS 140/2(c-10).
a. If a request is “commercial,” the public body shall respond within 21 days (instead of 5 days). The response shall include an estimate of the time required and an estimate of the fee to be charged; deny the request pursuant to an exemption; notify the requester that it is unduly burdensome; or provide the records requested. The time required for compliance with a commercial request shall be in a “reasonable amount of time considering the size and complexity of the request . . . .” Further, the public body shall give priority to records requested for non-commercial purpose. 5 ILCS 140/3.1
b.The General Assembly provided for a “violation” of the Act by commercial requesters not disclosing their intentions. The statute provides that “[i]t is a violation of this Act for a person to knowingly obtain a public record for a commercial purpose without disclosing that it is for a commercial purpose, if requested to do so by the public body.” 5 ILCS 140/3.1(c). It may frequently be a good practice to ask businesses whether their request is for a “commercial purpose.” Though the records must ultimately be disclosed, if that question is answered in the affirmative the public body will have more time to respond.
VI. Automatic Disclosures: Certain documents in the
possession of the public body are per se subject to disclosure.
The types of documents include: records of funds, payrolls submitted
under the Prevailing Wage Act, criminal history records (subject to
interference with investigations), and settlement agreements. 5
ILCS 140/2.5; 5 ILCS 140/2.10; 5 ILCS 140/2.15; 5 ILCS 140/2.20.
VII. Electronic Records. The new law expressly
provides for electronic records. FOIA requires that if a
requester requests a copy of a record maintained in an electronic
format, the public body shall furnish it in the electronic format, if
feasible. If this is not feasible, the public body shall furnish
the record in the format maintained by the public body, or in paper, at
the option of the requester. The public body may charge for
actual costs of purchasing electronic medium (disc, diskette,
tape). The statutory fee per page applicable to paper records
does not apply to electronic records. 5 ILCS 140/6(a).
VIII. Copying Costs. FOIA provides that “[n]o fees
shall be charged for the first 50 pages of black and white, letter or
legal sized copies requested by a requester.” 5 ILCS
140/6(b). Further, “[t]he fee for black and white, letter or
legal sized copies shall not exceed 15 cents per page.” Id.
For any copies in color or other sizes, the public body may not charge
more than its actual costs for reproducing the record. The law
provides that “[t]he cost for certifying records shall not exceed $1.”
Id. The old law provided that such fees could be charged at an
amount reasonably calculated to reimburse the public body for its
actual costs for reproducing the record.
a. There is a potential problem created by this copying section. Requesters may attempt to disaggregate a large request in light of the 50 page threshold. In such circumstances, where each request on its own is less than 50 pages, a requester may successfully receive all their records for free, at the cost of the taxpayers. In certain circumstances, the taxing body may wish to challenge whether a series of requests are in fact separate.
IX. Records held by third parties other than the public
body. The amendments provide that a record not in the possession
of a public body, but in the possession of a party “with whom the
public agency has contacted to perform a governmental function on
behalf of the public body, and that directly relates to the
governmental function . . . shall be considered a public record of the
public body . . . .” 5 ILCS 140(7)(2). This will likely require
compliance with FOIA requests for records held by accountants,
auditors, lawyers, and other professionals. To the extent that
documents between the attorney and client covered by privilege, it is
now increasingly important to so state on the document. Also, it is
important for the taxing body in the near future to resolve terms,
conditions, and costs with third party vendors for retrieval, copying,
and delivery of requested documents.
X. FOIA Exceptions. FOIA moves around the exemptions
into separate sections: 5 ILCS 140/7 and 5 ILCS 140/7.5. Some
exemptions are retitled, while others are deleted. Of the most
important changes to the exemptions is the treatment of privacy.
a. Privacy Exemption. Under the old law there was an exemption for privacy concerns. The exemption listed numerous categories of information that were exempt as a “clearly unwarranted invasion of personal privacy.” This provision has been substantially changed.
The law now provides 2 exemptions under this section. It provides for an exemption for “private information” unless disclosure is required by some other law. 5 ILCS 140/7(b). The term “private information” is defined in the statute to include “unique identifiers, including a person’s social security number, driver’s license number, employee identification number, biometric identifiers, personal financial information, passwords or other access codes, medical records, home or personal telephone numbers, and personal email addresses. Private information also includes home addresses and personal license plates . . . .” 5 ILCS 140/2(c-5). Therefore, anytime this information is included, it may be redacted. 5 ILCS 140/7.
In addition, the second part of the definition provides an exemption for information that if disclosed would constitute an “unwarranted invasion of personal privacy.” This term, previously undefined in the statute, is now given a definition. An “unwarranted invasion of personal privacy” is now defined to mean “the disclosure of information that is highly personal or objectionable to a reasonable person and in which the subject’s right to privacy outweighs any legitimate public interest in obtaining the information.” 5 ILCS 140/7(c).
This standard creates a problem for the use of this exemption. The previous law provided a detailed description of examples of the types of information exempt under this section. In the amendments, the General Assembly chose to instead define the term with a reasonableness standards and a balancing test. This will leave public bodies in a situation where they are now unsure what types of records fall under this section.
OPEN MEETINGS ACT (OMA)
I. The OMA requires that every public body designate employees, officers, or members to receive training on compliance with this Act. The public body must send a list of those individuals to the PAC. The training must occur within 6 months after January 1, 2010, and be renewed annually thereafter. 5 ILCS 120/1.05.
II. Enforcement. The same rules apply regarding who
can enforce the Act in Circuit Court. The Act provides that any
person, including the State’s Attorney in the county where the
non-compliance occurred, may bring the civil action. Civil action
must be brought within 60 days of the alleged violation.
(or if facts regarding the meeting were not discovered within the 60
day period by the State’s Attorney, then within 60 days of the
discovery of the violation by the State’s Attorney). 5 ILCS
120/3.
III. New Method of Enforcement through the Public Access
Counselor (PAC). Any person who believes a violation has occurred
may file a request for review with the PAC within 60 days of the
alleged violation. The request must be made (1) in writing, (2)
signed by the requester, and (3) include a summary of the facts
supporting the allegation. 5 ILCS 120/3.5. The PAC review
procedure is the same process as used for FOIA.
a.PAC Review. Once the PAC receives a written request from a requester that there has been a violation of the OMA, it will determine if “further action is warranted.” The PAC has 7 days to make this determination from the date the written request is received by the PAC. If no further action is warranted, the public body is not required to take any further action. Note that at this point the PAC will only look at the requester’s information.
i. If further action is warranted, the PAC forwards a copy of the request to the public body (within that same 7 day period after receipt). The copy shall accompany a request for records and other documents of the public body for the PAC’s review. The public body must provide the copies of the requested records within 7 days after receipt of the request from the PAC. The Attorney General has subpoena power to compel production of any documents in the possession of the public body. This will be an in camera inspection by the PAC to determine whether there has been a violation of the Act. The PAC will not disclose the records to the requester.
ii. Within that same 7 day period (after receipt of the copy of the request for review and the request for production from the PAC), the public body may answer the allegations of the request for review in the form of a letter, brief, or memorandum. The requester may respond to the answer of the public body within 7 working days after its receipt of the answer. The PAC will forward a copy of the public body’s answer to the requester, with any confidential information redacted from the copy.
iii. The documents available to the PAC include closed session recordings. The PAC has the same right to review “a verbatim recording of a meeting closed to the public or the minutes of a closed meeting as does a court in a civil action brought to enforce the Act.” 5 ILCS 120/3.5. There does not appear to be an expressed mechanism for the PAC to enforce any independent violation of the Open Meetings Act discovered when reviewing the closed session minutes. (e.g. an alternative reason for violation other than that urged by the requester). However, the only way to know for certain is to ensure that the public body is careful to only discuss authorized items in a closed session.
iv. The PAC shall issue an opinion in response to the request within 60 days after its receipt. The PAC has authority to extend the time by no more than 21 days, and also has the authority to resolve the matter without a binding opinion by issuing non-binding opinions or by mediation. Only binding opinions are subject to administrative review. 5 ILCS 140/11.5.
v. After issuance of a binding opinion finding a violation, the public body may (1) comply with the directive of the opinion, or (2) initiate administrative review. After issuance of a binding opinion finding no violation, the requester may initiate administrative review. Administrative review of any binding opinion must be filed in Cook or Sangamon County. 5 ILCS 140/11.5.
vi. The PAC may also issue advisory opinions. These opinions will be issued in response to a written request from the head of the public body or the attorney of the public body. The public body’s reliance, in good faith, on such opinions relieves it from liability under the OMA.
vii. Like in FOIA, if the requester files a civil suit before the issuance of a binding opinion by the PAC, the PAC takes no further action.
ATTORNEY GENERAL ACT - Amendments give the Office of the Attorney General the authority to complete the duties set forth in the FOIA and OMA amendments.
In conclusion, Public Act 96-0542 has caused substantial changes to
the requirements under both FOIA and OMA. As the legislation
completely overhauls FOIA, there is great uncertainty regarding how the
PAC will implement and interpret some of the provisions. Taxing
bodies should be sure to carefully review the Act and closely consult
with Counsel early in transition to ensure compliance.