Extra work is extra work

On August 17, 2009, Governor Pat Quinn signed one of the most sweeping revisions of the Illinois Freedom of Information Act (5 ILCS 140/1) (the “Act”) since it was adopted in 1983.

Citing the public policy of the State of Illinois that access to public records “promotes the transparency and accountability of public bodies at all levels of government,” the Public Act 96-0542 as codified in the Act declares that “it is the fundamental obligation of government to operate openly and provide public records as expediently and efficient as possible.” Further, the Act provides that irrespective of added cost to comply and technological advances, public records “shall” be made available upon request except when denial of access furthers the public policy underlying “a specific exception.” Finally, as amended, the Act “presumes” all records in the custody or possession of a public body are open for inspection and where a public body asserts the record is exempt, the burden is on the public body to prove “by clear and convincing evidence” that an exemption applies. 5 ILCS 140/1.2.

In addition to presuming that all records are public, the amended Act specifically requires production (subject to certain redactions) of the use of all public funds (5 ILCS 140/2.5); all payrolls (5 ILCS 140/2.10); all arrest reports and criminal history records (5 ILCS 140/2.15); and all settlement agreements ( ILCS 140/2.20).

The Act will prohibit public agencies from requiring the use of individualized FOIA forms nor can the public agency require the requester to disclose the purpose for the request. Further requests can be made by any method of communication, including oral requests. 5 ILCS 140/3(c). The public body must respond to the request within five (5) business days unless the public body meets the exceptions set out or the person making the request agrees to an extension. 5 ILCS 140/3(e). Significantly, the Act requires the public body to provide records which are in the possession of third parties with whom the governmental body has contracted to provide services which relate directly to governmental functions, and which are not otherwise exempt. 5 ILCS 140/7(2).

The Act distinguishes between requests for public records for a commercial purpose. A person requesting records for that purpose must initially disclose that the records are being sought for that purpose, 5 ILCS 140/3.1(c), and the time for the public body to respond is extended to twenty-one (21) working days after receipt of the request with a corresponding requirement that the requestor pay the public body its estimated compliance fee before the public body is required to begin copying records. 5 ILCS 140/3.1(a).

Getting public bodies to comply with the Act has also been significantly beefed up. Each public body is required to designate at least one FOI officer who will be responsible for receiving and complying with FOIA requests and an electronic or paper file will have to be kept on each request. 5 ILCS 140/3.5(a). Each designated FOI officer will be required to complete an electronic training curriculum to be developed by the Illinois Attorney General’s office which is to designate a Public Access Counselor who will also be responsible for reviewing disputes involving FOI requests and asserted violations of the Illinois Open Meetings Act. 15 ILCS 205/7.

The Act requires public bodies to provide copies of requested materials in electronic format if requested and if so maintained by the public body (5 ILCS 140/6(a)) and if provided in paper format, the first fifty (50) pages must be provided at no charge and each subsequent page shall not be higher than the actual cost to the public body to copy the documents or fifteen cents ($.15) a page, whichever is less. The cost for certifications of public records cannot exceed $1. 5 ILCS 140/6(b.

There are still significant exemptions which are numerous and specific (5 ILCS 140/7) and statutory exemptions. 5 ILCS 140/7.5

Finally, the Act makes failures to comply subject to both administrative and judicial remedies. Administratively, the person who has been denied records can file a request for review with the Public Access Counselor who will have the ability to require the production of records for its review and determination as to the requirement to produce or appropriateness of withholding material. Alternately, the requester can file suit for injunctive and declaratory relief. While that remedy has been available, the Act now shifts the burden to the public body to establish by clear and convincing evidence that any denied record is exempt. 5 ILCS 140/11(f). Further the judicial remedy provides that the court “shall” award attorneys fees to a person seeking to inspect a public record if that person prevails and, more importantly, if the court determines that the public body “willfully and intentionally failed to comply with the Act, or otherwise acted in bad faith,” a civil penalty of not less than $2,500 nor more than $5,000 shall be imposed upon the public body. ■

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Frank M. Grenard is a shareholder and the chair of the Commercial Transaction group of the Chicago, Illinois law firm of Johnson & Bell, Ltd. A 1977 graduate of Northwestern University School of Law, Frank is licensed in the states of Illinois, Iowa, Indiana, Nebraska and Michigan and most federal courts within those jurisdictions. He concentrates his practice in the areas of corporate, commercial transaction, environmental, and real estate, and litigation related to those areas or law. He has been a member of the Illinois and Iowa State Bar Associations Corporate Law Departments Section Councils. He is also a member of the Illinois and Iowa State Bar Associations Military Affairs Committees.

This article was originally published in the September 2009 issue of the ISBA’s The Corporate Lawyer newsletter, Vol. 47, No. 2, and is reprinted with permission.