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Government tyrants routinely disobey the public records laws. The article seems to imply that the Illinois public record laws are like the Arizona public record laws in that there are not penalties for government nannies that refuse to obey them.
New public records law: Secrecy down, but not out Advocates see progress, but watchdog has backlog, limited powers By David Kidwell and Jodi S. Cohen, Tribune reporters April 2, 2011 Attorney General Lisa Madigan has used her broad new authority over public records disputes to whittle at Illinois' long-standing culture of secrecy, but lax enforcement and a suffocating backlog of cases have left many citizens waiting in vain for the documents they seek. While Madigan has touted her office's success shaking loose records in many of the 5,500 cases it has handled since January 2010, a Tribune analysis and dozens of interviews reveal widespread frustration and myriad problems her office attributes to growing pains. Government agencies often rebuff the attorney general's rulings, her office fails to track whether records are ultimately turned over and her staff is so busy it can take months to resolve even basic requests. A Northwestern University law professor waited four months for several 1961 Chicago police reports from a high-profile murder case, only to receive copies with names blacked out to protect the identities of long-dead witnesses. A central Illinois newspaper has been trying unsuccessfully since the first days of the new law to get details about the resignations of three University of Illinois at Springfield women's softball coaches after an incident involving a player who was given a $200,000 settlement from the university. And a 75-year-old Oak Lawn civic activist with street flooding problems has tried for more than a year to get specifics on improvements to her village's water system. She is still waiting. "You can't fight city hall forever," said Beverly Ring, a self-proclaimed Oak Lawn gadfly. "I thought it would be a good thing for the public to know what is happening with our money. I didn't think I was asking for too much." Madigan's top aides acknowledge problems but say the Office of Public Access Counselor has made good early progress in what will be a long effort to reverse an ingrained government reluctance to release records. They say the first year of the law was spent educating government agencies about open records, and stepped-up enforcement will come this year. They also doubled the counselor staff to tackle the load. "We share the frustration," said Ann Spillane, Madigan's chief of staff. "Nobody thought this was going to happen overnight. But the most important thing is that people are getting records today they never would have gotten under the old law." Most open-records advocates interviewed by the Tribune said the attorney general's new powers are helping. "Despite all these frustrating delays, this system is still an enormous improvement from what we had before, which was nothing," said Terry Pastika, executive director of the Citizen Advocacy Center. "Under the old law, people had nowhere to go." In an effort to assess the effectiveness of the public access counselor, the Tribune obtained and analyzed data from the office's nearly 6,500 records cases — all the closed ones plus a backlog of more than 900 files that are still under review. While the office has cited the number of closed cases as a sign the new law is working, the Tribune found the majority of those cases ended with the attorney general's office siding with government agencies seeking to withhold records or redact information. In slightly more than 10 percent of the closed cases — 617 — the attorney general decided records were withheld improperly, meetings were being mistakenly held in secret or agencies were erroneously asserting exemptions. The attorney general's office argues that percentage doesn't take into account the times it resolved issues informally in favor of the public or the many cases where redacted records were released by agencies that would have denied them entirely under the old law. When the attorney general did help, it took time. In more than half the cases where her office sided with the person seeking records, the ruling took at least three months, the analysis showed. One common criticism of Madigan's new authority is that she almost never uses it. The overwhelming majority of rulings by the public access counselor are advisory and carry no weight or consequences for those agencies that choose to ignore them. Only seven times has the attorney general's office used its ultimate authority by issuing a legally binding opinion. In those cases, the agency must either comply or challenge the ruling in court. Two of those binding opinions came in February against the Chicago Police Department. One of those cases involved a Tribune request for statistical information about the number of sworn police officers in each of the city's police districts. The department refused, citing security concerns, and has announced its intention to challenge Madigan's ruling in court. Police departments are constantly creating cases for the public access counselor because of a controversial provision in the new law that requires agencies to seek permission every time they want to redact information considered to be private — such as birth dates and addresses in police reports. But police officials often interpret exemptions too broadly, according to the attorney general's office. The public access counselor disagreed with Chicago police decisions to withhold records nearly three dozen times, including the case involving a 50-year-old investigation into the murder of a school teacher. Northwestern University's Center on Wrongful Convictions of Youth has questions about the conviction of a 14-year-old student — now a 65-year-old man long released from parole — and law professor Laura Nirider is frustrated by the department's decision to heavily redact 30 pages of police reports. Nirider asked the public access counselor to get her the unredacted reports. After 111 days, the office managed to trim the amount of redactions, but upheld the Police Department's decision to withhold witness names. Nirider praised the efforts of the attorney general's office, but said she had hoped for more. "They agreed to withhold the names of all the witnesses, many of whom have been dead for years," she said of the public access counselor. "I mean, come on." Another agency that has routinely disagreed with the public access counselor is the University of Illinois. The attorney general's office says the university has defied its rulings to release all or parts of records in a number of cases, including the request by The State Journal-Register of Springfield for a document related to the softball scandal that was almost completely blacked out by the university on privacy grounds. But the attorney general closed the case without issuing a binding opinion. University spokesman Thomas Hardy said there has been a learning curve for both the university and the attorney general's office. "It is a complex, nuanced law where the legislature clearly understood that there would be interests that require balancing," he said. "We do the best job we can in terms of balancing those interests." There have been a number of high-profile cases where public agencies refused to comply with Madigan's office in records disputes and no binding opinion was issued. Last month, the Illinois State Police defied a Madigan decision that the names of gun registrants should be public. The department asked a judge to prevent the release of those records. Spillane, Madigan's chief of staff, said her office deals with some recalcitrant public agencies, but she feels the vast majority are working in good faith to comply with the law. Even in those cases, however, it doesn't always result in the release of public records. Ring, the longtime Oak Lawn activist, asked the village for its "master water plan" in early 2010 after repeated water main breaks and neighborhood flooding. "All I want to know is what is happening with our water mains, when they are going to fix them, how much they are going to spend and the timeline," she said. But the village cited an exemption for government blueprints that could be used by terrorists or vandals. "You'd think I was going to blow it up or something," Ring said. "It's ridiculous." Village Clerk Jane Quinlan, who responded to Ring's request, said it was difficult to discern what specific records she wanted. "We do the best we can to be responsive," she said. "We want people to have access, but we have to interpret the FOIA the way we interpret it." Spillane acknowledged her office could have done more to help Ring. "This is one of those cases where I wish we didn't have such a backlog to deal with," she said. "I wish we would have had the time to get all the parties on the phone to clarify what she wanted." Quinlan told the Tribune last week the records Ring wants are probably public and said she would follow up. dkidwell@tribune.com jscohen@tribune.com
Attorney general aide: U. of I. flouting law University involved in more than 70 cases under new public records law By Jodi S. Cohen and David Kidwell, Tribune reporters April 2, 2011 As a student reporter at the Daily Illini newspaper, Jennifer Wheeler tried to use the state's open records law last May to get the results of class evaluations filled out by students. In six weeks, she will graduate from the Urbana-Champaign campus without ever writing about how students rated their instructors and courses. Despite a recent ruling from the state attorney general's office that the documents should be made public, Wheeler learned in mid-March — nine months after she first filed the request — that she won't get them. University officials initially claimed professors wouldn't participate in the voluntary evaluation process if results were made public. After the attorney general rejected that argument, the university cited other privacy and personnel reasons to withhold the documents, stating that while they "respect and appreciate" the advice, "our interpretation is correct." "I thought when I got the letter (from the attorney general's office), it meant that I got the documents," Wheeler said. "But I guess that's not quite the case." Check out our crossword, Sudoko and Jumble puzzles >> Wheeler is not alone. Since January 2010, when a new Illinois law gave Attorney General Lisa Madigan authority to mediate records disputes between government bodies and the public, her office has handled more than 70 cases involving the U. of I. The attorney general's Office of Public Access Counselor has repeatedly disagreed with the university about whether records should be public in cases ranging from the university's search for a new president to a sports scandal at the Springfield campus. "The University of Illinois steadfastly refuses to comply fully and completely with (Freedom of Information Act) laws and to supply the public with documents it knows are public," Ann Spillane, Madigan's chief of staff, said last week. She said the U. of I. is among the agencies that "repeatedly disobey the law." U. of I. spokesman Thomas Hardy strongly disagrees. "In the overwhelming majority of instances … we did what the (public access counselor) recommended that we do," Hardy said. "In a small handful of cases, we had principled differences of opinion about how some of the exemptions within the law should be applied. That's hardly a pattern of disobedience." In some cases, the public access counselor agreed with the university's rationale for not releasing information. But in 27 instances, including some that took months to resolve, the office disagreed and found the U. of I. could not withhold documents or redact information. In most of those cases, the university said, it turned over the records. But in others, even after getting a favorable ruling, requesters such as Wheeler still haven't gotten the documents. Hardy said the university's three campuses handle an extraordinary number of records requests — 758 since the new law took effect — and released more than 100,000 pages of documents in response last year. But it took more than a year of wrangling before the university provided documents in a scandal involving the women's softball team at the Springfield campus, including coaches' resignation letters. It wasn't until last week that The State Journal-Register received a less-redacted copy of a letter in the case, 15 months after its request. Attorney general officials and the newspaper's lawyer said one key document — a $200,000 settlement agreement between a student player and the university — was disclosed only after the attorney general's office subpoenaed records. "We still don't have the records we are entitled to, even in cases where the attorney general agrees with us," said lawyer Don Craven. And even when records are released, they may come after delays that would not have happened under the old law. For example, in a case involving the cost of the U. of I. presidential search, the university withheld all records while it sought permission from the attorney general to redact some information. Under the old records law, Hardy noted, the university had the discretion to make a redaction and release the information. "You would have gotten that in a fortnight, or 14 days, the same documents that you basically obtained" in several months, he said. (The Tribune has filed federal and state lawsuits against the U. of I. for records in a separate matter; a federal judge ruled in the Tribune's favor in March.) Wheeler, the U. of I. senior, hopes the student newspaper fights the latest denial. "I guess it's some younger journalist's project now," she said. "But I really would have liked to have worked on it." jscohen@tribune.com jdkidwell@tribune.com
The process: What takes so long April 1, 2011 by David Kidwell, Joe Germuska, Christopher Groskopf and Brian Boyer Obtaining a public record in Illinois can take a long time. If you have to file a Freedom of Information Request, expect to wait weeks, sometimes months. Here’s why. The process 1. The records request is filed 2. The agency has five business days to make an initial response, at the end of the five days the agency can - and as a matter of routine usually does – ask for an extension of five more days. 3. After 10 business days, the agency can do one of three things: a) turn over the requested records, b) deny the request or part of it asserting any number of exemptions or, 3) ask for pre-authorization from the attorney general to assert either of the two most widely used exemptions. 4. If the agency wants to assert one of the two most widely used exemptions – citing an unwarranted invasion of privacy or an exemption because the requested records are preliminary drafts or contain opinions of public officials – the agency must under the law ask permission from the Public Access Counselor. This stops the clock. 5. The attorney general receives the pre-authorization request from the agency and opens a file. 6. Days, sometimes weeks or months pass while the AG makes sure the agency is properly asserting the exemptions. In some cases, the AG will ask the agency to provide unredacted copies of the records in question to check. 7. The AG either grants the exemption, denies it, or denies it in part, sending you and the agency a letter. 8. The agency can either comply with the AG’s advisory opinion or not. 9. If you disagree with the agency’s decision, you can file an appeal with the AG’s office called a Request for Review. 10. The AG will again open a new file, accept arguments from both sides, review the records and again issue an advisory opinion on whether the agency properly asserted the exemption. 11. If the agency still does not comply with the AG’s ruling, you can ask for a binding opinion. The AG will decide whether the agencies actions warrant the issuance of a binding opinion, which carries weight in court and can result in fines and penalties for failure to comply. The binding opinion also establishes precedent for other agencies asserting similar exemptions. 12. In order to defy a binding opinion, the agency must seek administrative review before a judge, who can institute fines and penalties for failure to comply.
A tale of two FOIAs April 1, 2011 by David Kidwell, Joe Germuska, Christopher Groskopf and Brian Boyer In many cases, it takes months for the attorney general to issue an advisory opinion in records disputes, and without a rare binding opinion from Madigan’s office the public agency is free to disagree and keep the records secret anyway. Here is a chronology of two such cases involving the University of Illinois. Media seek presidential search information The Chicago Tribune and several other media outlets have been trying since 2009 to receive documents related to the University of Illinois’ presidential search. The university sought permission from the attorney general’s office to redact some documents for privacy reasons. The attorney general’s office ruled in August that the university had not met its burden to justify redacting certain information, including airports that applicants used for travel and information about fees paid to a search firm. 1. 0 days May 14, 2010 The Chicago Tribune sought records from the University of Illinois related to the cost of its search for a new president. 2. 7 days May 21, 2010 The University of Illinois seeks a five-day extension on the Tribune's request for public records. 3. 14 days May 28, 2010 The University of Illinois tells the Tribune it is seeking approval from the attorney general's office to deny some records under the personal privacy exemption. The university also rejects the paper's request to immediately release records that aren't covered by the privacy exemption. The University of Illinois seeks approval from the attorney general's office to withhold records that could identify the applicants for the job of university president. 4. 80 days August 2, 2010 The attorney general tells the University of Illinois it can withhold the names of all applicants for the president's job except the winning candidate. But the AG says the university cannot withhold other information, including names of the schools where the applicants work. 5. 83 days August 5, 2010 The University of Illinois provides the Tribune 956 pages of documents but refuses to disclose the names of the universities where the unsuccessful presidential candidates work, saying it disagrees with the attorney general's Aug. 2 opinion. 6. 94 days August 16, 2010 The Tribune asks the attorney general to require the University of Illinois to produce information it is withholding that would identify what schools the presidential candidates came from. 7. 109 days August 31, 2010 The University of Illinois tells the attorney general why it won't release the names of the schools where presidential candidates work. The university argues future job searches could be harmed because applicants don't want their interest known to their current employer. 8. 130 days September 21, 2010 The attorney general acknowledges the Tribune's request for review. 9. 187 days November 17, 2010 The attorney general ruling on the appeal by the Tribune and other news organizations. The attorney general reverses its earlier opinion and now agrees the University of Illinois does not have to disclose the schools where presidential applications are employed; it rules the university still must release other information related to the job search. 10. 258 days January 27, 2011 The University of Illinois tells the Tribune it still disagrees with the attorney general and refuses to provide information about travel arrangements and other details of the presidential job search that could be used to identify job applicants. 11. 322 days April 1, 2011 The Attorney General's Office issues a binding opinion against the University of Illinois saying that it improperly asserted an exemption against one of the newspapers when it said its repeated requests were "unduly burdensome" and orders the release of records related to the travel expenses of candidates for university president. It is the first time Madigan's office has issued a binding opinion against the university, and the seventh time overall. University delays and denies providing records about softball team incident In 2009, The State Journal-Register in Springfield started pursuing a story about an incident involving male coaches of the women's softball team at the University of Illinois-Springfield, a small satellite school in the state's largest public university system. The incident led to the resignations of three coaches and later to a $200,000 settlement with one of the players, but details of what happened have never been made public. 1. 0 days January 4, 2010 Reporter Bruce Rushton asked for records regarding the conduct of coaches for the women's softball team at the University of Illinois-Springfield. 2. 3 days January 7, 2010 A letter to top officials at the University of Illinois-Springfield that discusses allegations in an incident involving a student and a softball coach. The university blacked out the contents of the letter, citing student privacy. The University of Illinois redacted the name in this settlement agreement paying $200,000 to the unidentified University of Illinois-Springfield student for an unspecified allegation involving the women's softball team. 3. 15 days January 19, 2010 The University of Illinois-Springfield sought permission to deny records citing the broad exemptions for privacy and preliminary drafts. 4. 88 days April 2, 2010 The University of Illinois-Springfield declines to provide records to the Illinois Attorney General for review, citing federal privacy law. 5. 269 days September 30, 2010 The public access counselor denies the university's request to withhold any student accounts of the incident and approves the university's request to withhold emails among administrators. 6. 270 days October 1, 2010 The university provides 18 pages of records but denies others, saying it disagrees with aspects of the public access counselor's Sept. 30 opinion. The newspaper appeals the university's denial of records to the public access counselor. 7. 284 days October 15, 2010 The public access counselor asks the university to provide the records it is withholding and a written analysis of why it is asserting an exemption. 8. 297 days October 28, 2010 The university responds to the public access counselor request for documents and analysis on the exemptions it is asserting. The university also says it would provide additional information from student accounts of the incident if the attorney general issued a "friendly subpoena," saying federal privacy laws otherwise preclude the release. 9. 324 days November 24, 2010 The public access counselor asks the Springfield reporter to respond to the university's argument for withholding records. 10. 357 days December 27, 2010 The attorney general issues a subpoena to the university for a broad range of records related to the softball scandal. 11. 368 days January 7, 2011 The public access counselor reverses its position and agrees with the university that it may withhold student accounts of the incident. But it rules the university must release redacted versions of coaches' resignation documents, the settlement agreement with the student and a related letter. The newspaper appeals to the public access counselor after receiving a redacted letter involving the incident that is nearly completely blacked out. 12. 375 days January 14, 2011 The public access counselor asks the university to explain why it so heavily redacted a letter regarding the softball team incident. 13. 387 days January 26, 2011 The university offers a detailed explanation to the public access counselor for why officials heavily redacted a letter involving the softball team incident. 14. 428 days March 8, 2011 The attorney general partially grants an appeal by The State Journal-Register of Springfield, ruling the newspaper is entitled to a partially redacted letter involving allegations of sexual impropriety between a student at the University of Illinois-Springfield and softball coach. 15. 451 days March 31, 2011 U. of I. provides to the State Journal-Register a less-redacted copy of a 2009 letter from a student player's attorney to the Springfield campus' chancellor and legal counsel. A more heavily redacted version had been previously provided. In the letter, the attorney writes that his client is concerned about retaliation for reporting the alleged incident, and worried about an effort to "sweep this matter under the rug."
How dare those serfs we rule over actually USE the public records laws we passed! Recently overhauled laws on open records face backlash By David Kidwell, Tribune reporter 5:27 p.m. CDT, April 3, 2011 A little more than a year after Illinois lawmakers rewrote open records laws promising a new era of transparency and accountability, frustrated mayors, school superintendents and police chiefs are back in Springfield, looking to undo many of the provisions. More than three dozen bills — from minor tweaks to major overhauls — were filed this year to change the state Freedom of Information Act (FOIA), most with the goal of reducing access to records. "Look, we are not trying to stop any legitimate claims for information," said Alsip Mayor Patrick Kitching, who asked his state senator to file a bill that could limit the rights of political enemies to inundate agencies with records requests. "It gets to a point where people in the office can't do the public's business. We've been paralyzed by someone who is using FOIA as a weapon," Kitching said, referring to a stack of 90 records requests his village received one day last year from a former police chief and Village Board candidate locked in a bitter political feud with the mayor. Kitching's bill — filed by Sen. Edward Maloney, D-Chicago — would limit the rights of "vexatious" records seekers to appeal a denial and give governments more time to answer them. It is among a handful of proposals that open records advocates, media lobbyists and Attorney General Lisa Madigan say they are braced to fend off. Check out our crossword, Sudoko and Jumble puzzles >> "Really? That's how you deal with a single complaint? You pass a new law?" said Ann Spillane, chief of staff to Madigan, who was made guru of public records disputes as part of the FOIA overhaul enacted Jan. 1, 2010. "This office is prepared to fight any legislation we feel will scale back the revisions to the Freedom of Information Act." But many government leaders and their lobbyists say it is more than one complaint, and that the laws designed to make access easier also have taken a toll on privacy and cost taxpayers in staff time, copying expenses and legal bills. Among the proposed changes before the Legislature are exemptions to make secret such things as birth dates of public employees, the identities of park program participants, the performance evaluations of some government contractors and any record that might identify applicants for public jobs. There are also proposals to defray government costs by making access to records more expensive. One would let governments post records online instead of making copies, and another would allow them to charge for retrieving records archived off-site. Many of the most sweeping proposals were filed in one bill, co-sponsored by Sens. David Koehler, D-Peoria, and Pamela Althoff, R-McHenry, that would have eliminated the new requirement that agencies seek permission from Madigan's office before they can deny records based on privacy or preliminary-draft exemptions. The bill also would have ended the new provision requiring the first 50 photocopies of a records request to be free. Althoff, a former McHenry mayor, filed the bill at the request of lobbyists for school administrators and has since pulled it back to negotiate its provisions. "Look, it was apparent almost from the day the new FOIA bill passed last year that there were going to be problems," she said. "We are not trying to undermine open records in this state. I believe there are no secrets in local government.'' She said she is part of a working group that includes lobbyists from the Illinois Municipal League, which opposed the new records law, and Madigan's office, which argues too many of the proposals are knee-jerk reactions. In Alsip, former Police Chief Rick Dalzell laughed when told that his 90-in-one-day request for records became the subject of the proposal to restrict "vexatious" records seekers. "I guess I'd rather be remembered for the Nobel Peace Prize, but that's OK," Dalzell said. "I was a policeman for 28 years, I don't embarrass easily." Dalzell said many of the records he sought that day — such as meeting minutes and village ordinances — should have been available without a formal records request. "If they were more open and transparent, then I wouldn't have to file requests," he said. "I told them to take as much time as they needed." Some open records advocates say most of the burden on local governments could be overcome inexpensively by storing records in a way that makes them easier to retrieve — such as keeping private information on a separate page. "That's a great idea," said Brian Day, a municipal league attorney. "Now tell me who's going to pay for it. It's not like we can afford to overhaul all our computer systems." Terry Pastika, executive director of the Citizen Advocacy Center, a group that helps people write records requests, said there are ways to better comply with the law that don't cost governments any time or money. "Just because we changed the law, doesn't mean we changed the culture," she said. "We have to instill the idea that these records do not belong to the public agencies. They belong to the people who paid for them." dkidwell@tribune.com |