In the wake of scandal that brought down a governor, reform legislation was the focus of the Illinois General Assembly this spring. As part of that, it passed a bill revising the state's Freedom of Information Act. Journalism and advertising professor Steven Helle deals extensively with the topic of open-records laws in his courses on the law related to journalism and communication. Helle was interviewed by News Bureau social sciences editor Craig Chamberlain.
For journalists and advocates of open government, is the new bill an improvement?
The bill achieves some worthwhile goals and misses the mark on some others. But all in all, it was a once-in-a-generation opportunity to address problems with the state's Freedom of Information Act. Access proponents have occasion to celebrate, even if problems remain.
How did Illinois compare with other states before this new legislation?
A 2008 survey by the Better Government Association and the National Freedom of Information Coalition ranked Illinois among the 38 states receiving a letter grade of F for its FOIA, although Illinois' grade was toward the top of the F range with a score of 59 out of 100. Nebraska and New Jersey tied for first, both receiving Bs, and Alabama and South Dakota tied for last, both receiving zeroes. In the next survey, perhaps the Illinois FOIA will rate a grade of C instead of F. One thing that survey did not take into account, however, was the number of exceptions, and it seems Illinois adds more exceptions every year. The Legislature started with 23 and there were 45 before the new bill. We seemed to be in a race with Kansas, which has 47, but it's not the kind of race that we should be in, if you are an advocate of government in the sunshine.
What are some of the key changes?
The bill shortens the time within which public bodies must respond to a records request from seven to five days. This is notable because the federal Freedom of Information Act was just amended to extend that period from 10 to 20 days for federal records. The bill makes it more likely the public body will have to pay the requester's legal fees if the requester wins, which can be critical to whether the law has any real-world effect. It establishes a civil penalty on public bodies that "willfully," quote-unquote, fail to comply with the act. Additionally, the bill goes into great detail about the duties of a newly created public access counselor in the state attorney general's office, who will provide a means of resolving disputes without going to court.
Are there other significant changes that haven't gotten as much attention?
Yes. Private corporations under contract to perform governmental functions will now have to turn over records related to those functions. That could be huge, because of the trend toward contracting out government services.
In another change, the definition of public records now specifically includes electronic communications, and those records must be supplied in digital form if requested, making it much easier to enter all that data and run spreadsheet analyses. Requests by a commercial enterprise for public records, which were prohibited before, are now allowed, albeit on a more relaxed timetable for disclosure. Also, when public bodies reach an out-of-court settlement, that agreement is now specifically made public. Before this, if public bodies went to court, the court ruling was always public, but they could arguably avoid such disclosure if they reached a settlement agreement - say in the example of a school settling with a fired football coach. Now the outcome must be public whether in court or out of court.
How does the legislation deal with privacy concerns?
The legislature made a very significant change regarding privacy interpretation that is not at all obvious if you just read the bill. Appellate courts in Illinois had split in the past on how broadly to interpret the exception for private information in the act. The bill comes down on behalf of balancing privacy against public interest, eliminating all the specific exceptions, and therefore opening more records to disclosure.
FOIA laws are often called sunshine laws because the stated intent is to encourage more open and transparent government. How well do they really work?
It often seems that what journalism professor Don Pember predicted in the '70s is coming true: FOIA laws extol disclosure, but they have become tools for keeping things private. We don't think of government having a privacy right, but it adds to its privacy every year. Every branch of government has always just let the public see what government wants it to see, and FOIA laws have come to simply codify that predilection. The exceptions in the laws become the rule. Having said that, FOIA laws have been used to lever open the doors of government on occasion, by media and non-media alike. They are better than nothing, although sometimes I wonder.