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Illinois FOIA makes access for journalists easier

November 20, 2009

Beth Bennett, director, governmental relations, Illinois Press Association

Illinois new Freedom of Information Act, which goes into effect Jan. 1, 2010, will make access to public records easier for journalists, says Beth Bennett, director of government relations for the Illinois Press Association.

The new law is a “very thorough rewrite” of the current law, she says. “We got the majority of the things we wanted, but we didn’t get everything.”

Among the changes is a general philosophy of transparency, Bennett told journalists Thursday, Nov. 12, during a one-day workshop on the “Essentials of Credibility & Media Law” co-sponsored by the Mid-America Press Institute and the Illinois Press Foundation. Bennett, who was assisted by Josh Sharp, assistant director of government relations for IPA, led a session on “Assuring Your Access to Records and Meetings.”

The new law creates a presumption that all records of a public body are public, she said. The onus used to be on the seeker of information to show why the information he sought should be public. Now the information is considered a public document and it is up to the public body to show why the information should not be released.

The new law also creates a public access counselor in the state attorney general’s office.

“If a person can’t get information, they can go to the public access counselor for assistance,” Bennett said.

In the past, the attorney general’s office merely issued advisory opinions on whether the document was a public record. Under the new law, the public access counselor can subpoena the documents and issue a binding opinion.

If the public access officer denies the request for a record, then an appeal would be made to a circuit court judge. In the past, if a government office denied a request, journalists had to appeal to the head of the agency overseeing the office and then file suit in circuit court.

But if a journalist is seeking information from the state attorney general’s office, the law does not include a procedure to follow.

“When we were talking about this the other day, we said that this was going to be very interesting to see if they can police themselves,” Beth said.

Under the new law, each public body will have to have an FOIA officer in place, she said. “In the past, public bodies were suppose to have an officer, but they didn’t take it seriously or provide any training.”

The attorney general’s office will be charged with providing training for the FOIA officers. Because of this Bennett thinks requests will cause backlogs until questions about the law become routine.

“We believe that all the public entities, when in doubt, will kick it upstairs to the PAC at first,” she said.

Among other pluses, the new law shortens the initial time to respond to an FOIA request from seven to five business days. If a public body fails to reply to a request within the time allowed, it must waive any fee for copying of records or assert the exemption for unduly burdensome requests.

“This is one of the spots where we didn’t get what we wanted,” said Don Craven, interim director of the Illinois Press Association.

The new law also covers all electronic communications as public records.

All records relating to the receipt and use of public funds are public records, and private companies handling government functions have to make public records available.

Also, police agencies must disclose information of arrests to the media as soon as practical and no later than 72 hours after the arrest.

The downside of the new law is that all FOIA request may have to be made in writing, although the act states a public entity can act on an oral request, Bennett said.

In addition, the law requires public bodies to have a list of documents and categories of records that it will routinely turn over immediately.

Public officials can redact information considered private but they must hand over the document, she said. Unfortunately, the law doesn’t list what documents are exempt from the act.

“I think a good project for this group going forward is to put together a list of all the documents that are exempt from the act, but are not mentioned in the act,” Craven said.

At the same time, public officials cannot say the records are personnel information and included in someone’s personnel file.

However, the law does create a narrow list of “private information” that is exempt, which includes license plates, social security numbers, personal email addresses and telephone numbers.

If someone violates the act, they could be fined $2,500 to $5,000. Civil penalties could be levied against any public body that willfully and intentionally failed to comply with the law or otherwise acted in bad faith, Craven said. “If you sue and are successful, attorney’s fees are mandatory.”

Among other provisions of the act:

— A person has to state the purpose for the request, such as commercial purpose instead of news, and the public body can determine whether to waive copying charges. The public body can’t ask what a person is going to use the information for.

— Commercial enterprises are a separate track and the media are not considered commercial enterprises.

— There is an exemption for unwarranted invasion of personal privacy. However, this does not apply to public employees or office holders.

— The first 50 pages of a black and white document are free and then each additional page copied will cost 15 cents. If the document is color, the public agency can’t charge more than the actual cost to reproduce the document.

— The cost for the provision of electronic records is provided in the act. A public body can charge for the disk public records are copied to.

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