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5/21/09 FOI Update: Write Your Lawmaker TODAY!

A revised analysis from FOI/OMA Chair Bob Roberts:

Just when it appeared that the movement for openness in Illinois government was poised to take a quantum leap forward, competing rewrites of the Illinois Freedom of Information Act have emerged.

While one is less than perfect, it is by far preferable to the other version.

Attorney General Lisa Madigan's office May 11 released a rewrite (HB1370 House Amendment 1) that, while not perfect, is a big advance from the current law in a number of ways. The other version, authored by Democratic leadership in the General Assembly, and is being submitted as an amendment to Senate Bill 1265, is a step backward.

INBA cannot recommend the rewritten SB1265. We prefer the attorney general's version (HB1370) for a number of reasons:
-Wording that encompasses both existing and future technology, so no one can claim new technology is exempt from the act because it is not specifically named;
-A reduction in the number of days allowed to reply to requests to five days from seven, with a possible five-day extension, and the provision that the two sides can negotiate a longer period;
-Waiver of a public agency's right to assert most exemptions, and a waiver of copying fee requirements, in cases in which an agency fails to meet those deadlines or ignores them;
- A requirement that agencies must prove in court any exemptions they claim by "clear and convincing evidence;"
- Class C misdemeanor criminal sanctions on top of the civil fines for willful violation (up to 30 days in jail and a $1,500 fine);
- Verbiage that indicates the court "shall" impose fines of $100 to $1,000 for willful violations, taking into account the agency's record of compliance in other cases;

- Recognition that public records turned over to consultants for their use remain public records and must remain accessible under normal rules;
- Statutory fee waiver for the first 25 pages requested and a limit of 15 cents a page after that;
- A provision that bars agencies from asking why information is sought;
- Recognition that payroll records are publicly-available documents, although addresses and social security numbers may be redacted; and
-Elimination of the cumbersome requirement that requests and appeals go through the head of an agency.

The measure also amends the state's whistleblower act to specifically forbid retaliation for refusing to participate in attempts to thwart FOIA.

The Democratic leadership's bill (SB1265):
- Eliminates mention of criminal penalties for willful violation;
- Removes the language that would impose a waiver of most exemptions if a public body fails to respond to an FOIA request in the allotted time period;
- Reinstates a number of automatic privacy exemptions that are deleted in the attorney general's rewrite;
- Requires all FOIA requests to go through agency FOIA officers, and allows the agency to demand requests in writing;
- Does not "start the clock" on FOIA requests until the request is physically in the hands of the FOI officer, so that if the officer is on vacation, out sick or otherwise unable to be in the office, the clock is not running;
- No longer requires information requested under FOIA to be provided in the format in which it is kept.

By comparison, the issues INBA has with the Attorney General's version (HB1370) are relatively minor: FOIA requests must still be made in writing. It does not specify that certain police blotter information is public information that must be furnished immediately. The Attorney General's redraft retains more than 20 exemptions; several irk your FOI chair quite a bit, including those that keep secret all information provided to Abuse Prevention Review Teams on sexual assaults and deaths at nursing homes, information given child death review teams, certain information on predatory lending and the results of faculty peer evaluations and student disciplinary hearings. IPA finds most objectionable the exemption for preliminary documents made by members, employees and officials of public bodies.

To date, efforts by the Attorney General's office, the Illinois Reform Commission and the Illinois Press Association to reach a compromise with the Democratic leadership on the competing rewrites have failed. IPA and the Reform Commission stand behind the Attorney General's version, and INBA believes you should as well.

Thus, INBA urges journalists across the state of Illinois to weigh in and to be specific about what you like and dislike.

While it is not everything that the news media might seek in an FOI law, the Attorney General's version is probably far more than we ever could have hoped to get before the showdown earlier this year between the legislature and former Gov. Rod Blagojevich.

Government behind closed doors is rarely a good thing, and it has been far too common in Illinois for the media and the public to get the cold shoulder and that was particularly true in the Ryan and Blagojevich years. It remains the order of the day in far too many places in state and local government, whether through ignorance or through willful blockage of the people's right to know. SB1265 is evidence that this mindset has not necessarily changed with the change in administrations.

The Attorney General also has released a redraft of HB4165, which would establish the Office of the Public Access Counselor as a permanent fixture in the AG's office, with the ability to issue binding opinions, although the Access Counselor would be able to negotiate in such cases if he or she deems it a workable solution. This measure, if it becomes law as envisioned by the Attorney General, will be of great importance in the future, and we urge your unqualified support.

Apparently the rancor and embarrassments of recent years has not been enough for some leaders in the General Assembly to try to slip by an inferior bill. That is why it is more important than ever for friends of the First Amendment to speak out and be specific.

Time is short. Write today.

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