CBA Record July-August 2015

CBA HOSTS FOIA SEMINAR

Information is Power

By Amy Cook

CBA Record

Editor-in-Chief

here are two sides to every story

when it comes to Freedom of Infor-

mation Act requests. Investigative

reporters or attorneys who represent public

interest groups dedicated to open govern-

ment may see indifference, secrecy, and

roadblocks in response to FOIA requests.

For representatives of government bodies,

such requests may be seen as overreaching,

overly burdensome, or fishing expeditions

for irrelevant information. Both sides agree

that government bodies must balance the

public interest in government transparency

with the rights of private citizens whose

personal data may be in the documents.

Larry Yellen, attorney and investigative

reporter for Fox News Chicago, moderated

an April CBA seminar on recent changes

to the Illinois Freedom of Information

Act. The panel included Barbara Adams,

Senior Counsel, Holland & Knight; Tim

Novak, Investigative Reporter,

The Chicago

Sun-Times;

Sarah Pratt, Public Access

Counselor, Office of the Attorney General;

and Matthew Topic, Outside General

Counsel, Better Government Association,

and Partner at Loevy & Loevy.

All public records are presumed to be

open to inspection and copying by the

public. A public body has the burden of

proving that a record should not be dis-

closed “by clear and convincing evidence.”

According to the Illinois statute, 5 ILCS

140, the public body must respond to a

request with either an approval or denial

within five business days after the receipt

of the request. The public body may extend

the time to respond by an additional five

business days for a variety of reasons.

However, Tim Novak , who typically files

10 to 12 FOIA requests a week, said that

it is his experience that government bodies

automatically ask for an extension. He says

delay is used to kill a news story.

Matthew Topic said that people need

to know who the government is making

deals with and how much money it makes

on a deal. He said, “If the government is

allowed to act in secret, there will be people

who will take advantage of that.” Likewise,

Novak believes that many government

entities he deals with think: Is there a way

I can keep this record secret, or at least wait

until someone sues me?

Barbara Adams addressed the govern-

ment’s perspective. First, FOIA requests

can be burdensome. Some entities see

it as an unfunded mandate. Then, there

are privacy issues: information relating to

medical records or domestic abuse may be

disclosed if the public bodies are not care-

ful. She also noted that information might

dry up if people know it might be shared,

such as in a police report.

In 2010, there were substantial changes

to the Illinois FOIA. The panelists said

that more information is now available,

but governments want a formal FOIA

request for “everything.” Sarah Pratt’s

office of the Public Access Counselor

provides an alternative to litigation. They

don’t give legal advice, but do provide

advisory opinions. She said, “Usually one

letter from us and the government body

will respond.” She gives public bodies the

benefit of the doubt, noting “Some FOIA

officers wrongfully believe that they need a

formal FOIA request for everything, and

that they can’t just let someone see [the

requested material].”

Another concern for requesters is that

some government bodies do a “data dump”

on their websites. Novak said that by doing

this, the entity seems transparent, but now

information seekers have to wade though

giant databases to find the one thing they

are looking for. However, Pratt says govern-

ment bodies cannot just say, “Yeah, that’s

on our website.” They must direct the user

to the specific record. With over 7,000

government bodies in Illinois (according to

Pratt), there’s no shortage of information

to battle over for years to come.

JULY/AUGUST 2015

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