Hundreds of public records cases stymied in attorney general's office

While public-records cases pile up, Illinois Attorney General Lisa Madigan rarely uses her authority to order records disclosed under the state Freedom of Information Act.

Under the law, anyone who is denied a record by a public body can sue or ask the attorney general for help. The law sets a 60-day deadline for the attorney general to order records turned over via binding opinions, which can be overturned only by a judge. It is, at least in theory, a way for citizens to get public records without hiring lawyers.

But more than 300 requests for help from citizens in FOIA cases had been pending in Madigan's office for at least 60 days as of March 1, some of them for more than a year. Madigan's office has issued just seven binding opinions since gaining the authority to do so in January 2010, as part of a rewrite of the freedom of information law.

The issues in many cases are novel and require extensive research, said Ann Spillane, Madigan's chief of staff. The attorney general also prefers to educate public bodies about the law's requirements rather than issue edicts, Spillane said.

"The approach we've tried to take is to work with public bodies and get them to be responsive," Spillane said. "We will, over the coming year, be taking a different approach. … You will certainly see over the coming months and year a much greater willingness on the part of our office to issue binding opinions more quickly."

The attorney general can resolve cases informally and issue advisory opinions that carry no force of law. But public bodies can ignore those opinions without punishment, and some have. The University of Illinois, for example, has ignored at least two advisory opinions issued by Madigan's office in FOIA cases since September.

In the attorney general's most recent binding opinion, issued April 1, the university was ordered to turn over records relating to its search for a new president. The university did not follow a November advisory opinion in which the attorney general had said the records should be open.

University of Illinois spokesman Thomas Hardy said that the university has not yet decided whether to follow the binding opinion or ask a judge to overturn it.

"We are changing our course as it relates to the University of Illinois," Spillane said. "The University of Illinois has fallen into a group of government bodies that we've seen over the first 15 months of the statute that do not always comply with the law."

Hardy, however, said the university is doing a good job of negotiating a law filled with complexities and nuances. Last year, he said, the university turned over 101,088 pages of documents in response to 605 FOIA requests, he said, and the number of requests increased 20 percent over the previous year.

"It's been a challenge for everyone involved," Hardy said, "but we fully support the law and will continue to work with the public and the public access counselor."

Frustration results

Requesters who have waited longer than 60 days for answers range from prison inmates to gadflies to parents to elected officials. The queries include requests for budget documents, police reports, disciplinary files on public employees and dozens of other types of records.

In June, Sen. Susan Garrett asked the attorney general for a binding opinion after Metra, the Chicago-area transit agency, refused to release monthly progress reports from its lobbyists. Metra claimed the records were exempt from disclosure due to attorney-client privilege.

More than nine months later, Garrett is still waiting for an answer from Madigan's office.

"Just following up with you on this matter," wrote Diana Villamil, the senator's legislative director, in a November email to an assistant state's attorney in Madigan's public access counselor's office. "Do you think we should have a decision before Thanksgiving?"

Thanksgiving came and went. So did Christmas, Valentine's Day and St. Patrick's Day.

The lack of a ruling has prompted Garrett to file a bill making it clear that such reports must be released under the state Freedom of Information Act.

The senator says she's more frustrated with Metra than Madigan.

"It has taken a longer period of time than I would have wanted," Garrett said, but "I would rather have them be thorough and do it right than come up with something that's half-baked."

But Emily Miller, a lobbyist for the Better Government Association, which backs Garrett's bill, said the backlog is cause for concern.

"It is troubling when all of those cases mount up and there's no answer that comes out of the one office that can provide an answer," Miller said.

Spillane said the question of what is privileged and what is not when public bodies hire lawyers as lobbyists presents "a very difficult legal question."

"We have tried to navigate that," Spillane said. "We have spent very significant time dealing with the Metra lawyers to push them to release more documents. We have also spent very significant time working with Senator Garrett in an effort to help her identify places in the Freedom of Information Act that could benefit from clarification so that important public information could be released to the public."

Parent stonewalled

Debra can't afford a lawyer, so she turned to Madigan's office last year.

Debra's 15-year-old son is autistic and cannot communicate verbally. Last fall, an aide who tends the boy on a school bus told Debra her son had been acting out in a sexual way for more than a month.

None of her son's other aides or teachers had reported such behavior and she had never witnessed it, said Debra, whom the newspaper is not fully identifying to preserve her son's privacy. If the aide was telling the truth, Debra wanted to know. Debra also said she wanted to be sure that the aide had not done anything inappropriate and she was concerned that the behavior allegedly had gone on for weeks before she was told.

In November, Debra asked the Valley View School District for video from a camera in the bus. The district refused to provide it, arguing that disclosure was barred by state eavesdropping laws and the state Student Records Act. More than four months after asking Madigan for help, Debra is still waiting for an answer.

"Do you know if I will be granted my request?" Debra wrote in a Dec. 13 email to the assistant attorney general in charge of the case. "I have a disabled child, and some very inappropriate things went on during the school bus ride, and I want to see how it was handled, as this alleged behavior went unreported for weeks if not months."

In an interview with a State Journal-Register reporter, Spillane cited Debra's case as one in which extensive research was required.

Four hours later, Debra got her answer via an email from the attorney general: Madigan's office agreed with the school district.

"I'm really upset about this," Debra said.

Cases mount up

The list of cases that have languished includes requests for:

*The number of security badges given to companies that do business at Midway and O'Hare airports in Chicago. The requester contacted Madigan's office in July. The case is still pending, even though the requester has provided Madigan's office with the names of more a dozen U.S. airports that have provided the same records.

*A copy of the most recent budget from the East St. Louis School District and a list of transportation contracts awarded by the district. The requester asked for Madigan's help in February 2010, and the attorney general's staff sent a letter to the district on March 5, 2010, giving the district seven days to respond. More than a year later, there has been no response.

"We are struggling to get the school district to be responsive," Spillane said. "Ultimately, this law will work best if, in addition to our enforcement, there is voluntary compliance."

*Payroll records, office budgets and attorney training records from the Livingston County state's attorney's office, which rejected a request for the records on the grounds that the state's attorney is exempt from the Illinois Freedom of Information Act. The case has been pending at the attorney general's office since Feb. 24, 2010.

Spillane says that state's attorneys are subject to FOIA.

"We are working to convince the Livingston County state's attorney," Spillane said.

*Several requesters have contacted the attorney general's office after being denied financial records from public bodies. Among them is Tracy Waterman, who in August sent an e-mail requesting various financial records from the village of Cleveland, including records for a festival and a copy of a veto letter from the mayor to the village board. Six days later, village treasurer Rick Lindell said no.

The village, Lindell wrote, would no longer accept FOIA requests sent by email.

"Whoever wrote this request must come to the Village hall to present the request, please bring a valid ID," Lindell wrote. "Each request will be signed and dated by the requester in the presence of myself, meaning there's 5 requests listed below so 5 signed and dated pages will be presented."

Madigan's office on Sept. 9 wrote Lindell, telling him the law requires the village to accept emailed FOIA requests. An assistant attorney general also gave Lindell seven days to explain why the village had not provided the requested records.

Seven months later, Waterman still hasn't gotten the records.

The case file in the attorney general's office contains an undated written response from Lindell and the mayor, stating that Waterman didn't provide her true address when requesting records, so she was not entitled to documents. The village didn't believe that the names of sponsors for a fundraiser contained in a check register should be public information, Lindell and the mayor wrote, but they did not explain why state law allowed the record to be withheld.

There is no indication in the file whether Madigan's office has done anything to follow up. Waterman says she believes the attorney general could have done a better job.

"If they're putting out what the law should be, they should be making sure that it's enforced," Waterman said.

Bruce Rushton can be reached at 788-1542.

Decisions sometimes come to late

By BRUCE RUSHTON

STAFF WRITER

Bruce.rushton@sj-r.com

In June of last year, Mike Babcock, Wood River Township supervisor, read a statement at a township board meeting.

The next day, the township received four requests for copies of the statement.

The township claimed the document was exempt from disclosure under a clause in the Freedom of Information Act that allows public bodies to withhold records that contain opinions or that are considered drafts or preliminary documents. However, the exemption doesn't apply if public officials cite the record during a public meeting.

Under the law, public bodies that wish to withhold records under that exemption must get approval from the attorney general's office. So township clerk Sherry Tite on June 18, 2010 asked for permission to keep the statement confidential.

"Mr. Babcock stated he read from his personal notes," Tite wrote in the request, which was accompanied by a recording of the meeting and a copy of Babcock's notes. "Before reading from his notes, he said 'I am going to make a few short comments that have been prepared along with our counsel."

Nearly 10 months later, the attorney general has yet to make a ruling.

"We want to take a very close look at the notes and try to sift through this issue, which we expect will come up in the future," said Ann Spillane, chief of staff for attorney general Lisa Madigan.

In this and other cases, Spillane says, rulings can take months because the issues are new and require extensive reviews of the documents in question.

The Wood River Township case is one of more than 70 cases that are pending in Lisa Madigan's office at least 60 days after public bodies asked for permission to withhold records on privacy grounds or on the grounds that the documents are preliminary or contain opinions. Under state statute, the attorney general must give approval before public bodies can exercise those exemptions. There is no deadline for decisions, which carry no force of law. Records generally are not released until the attorney general rules.

Decisions, when they do come, sometimes arrive too late to make a difference.

David Holt, publisher of the DeWitt County Constitution, a newspaper in Clinton, asked for a copy of budget worksheets used by members of the DeWitt County Board's finance committee last September. DeWitt County State's Attorney Dick Koritz asked Madigan's office for permission to withhold the documents on the grounds that the worksheets were preliminary documents.

Holt disagrees, saying that committee members frequently referred to the worksheets while discussing the budget. In any case, Holt says, he received the documents shortly after the meeting from a county board member and had forgotten about the matter until two weeks ago, when he received a letter from the attorney general.

The public access counselor's office ruled in a March 23 letter that the worksheets could be withheld on the grounds that they are preliminary documents, with no evidence that they had ever been discussed in public.

Holt says committee members talked about dollar figures on the worksheets and referred to them while talking about how public money should be spent during the meeting.

Holt considers the matter moot, since he got the records he wanted months ago. But he thinks the attorney general made the wrong call and took too much time doing it.

" "This should have been a ten-second decision," he said.

Spillane points out that Holt did not respond when the attorney general invited him to present arguments in favor of disclosure. She also said the ruling required extensive review of the records.

In Will County, the coroner's office is waiting for rulings in five cases in which requesters are seeking autopsy reports, toxicology reports and other documents. The requests were made between April and August of last year.

The attorney general in October 2010 issued a binding opinion to the Cook County Medical Examiner's Office, ruling that autopsy records in two cases must be made public, except for post-mortem photographs. Despite that ruling, the Will County cases remain open because every case is different, Spillane said.

"We are in the process of resolving those issues," Spillane said.

Bruce Rushton can be reached at 788-1542.

Texas moves faster on FOIA requests

By BRUCE RUSHTON

STAFF WRITER

Bruce.rushton@sj-r.com

Since gaining the power to rule in records cases last year, Attorney General Lisa Madigan's office says it has received 6,814 cases.

Just three percent of cases from 2010 remain unresolved, according to Madigan's staff, while 36 percent of cases opened this year remain open.

In Texas, where the attorney general must approve every denial of a records request within 45 business days, government last year ruled on more than 19,000 matters, according to the Texas attorney general's website.

Ann Spillane said comparisons between the two states aren't valid.

For one thing, Spillane notes, Texas has 39 attorneys who handle public-records cases and an additional 15 support staff. In Illinois, nine lawyers and six clerical workers and paralegals work full time in the public-access counselor's section of the attorney general's office. An additional five lawyers are assigned to the division on a par-time basis.

Texas also has a different public-records law than Illinois, Spillane points out, and the law has been in effect since the early 1970s.

"They have a body of decisions they can point to," Spillane said. "It's easier for them to point to a particular exemption and move quickly."

Bruce Rushton can be reached at 788-1542.

Lawmakers happy with FOIA -- mostly

By ANDY BROWNFIELD

STATE CAPITOL BUREAU

andy.brownfield@sj-r.com

Local legislators are happy with the way the state's Freedom of Information Act works, but others say there is still room for improvement.

"I think they (constituents) are happy with the way it's working," Petersburg Rep. Rich Brauer said. "You judge that typically by the number of phone calls you get, and right now I think we're where we need to be."

Illinois' freedom of information law was changed in 2009 to shorten the amount of time bodies had to respond to public-records requests and create fines for governmental units that "willfully and intentionally" violate the act.

"I think they (the changes) worked out OK, based on the lack of calls to my office," said Sen. Larry Bomke, R-Springfield.

Taxpayers have a right to find out what the government is doing with their money, and FOIA is important for that, Carlinville Republican Sen. Sam McCann said.

"One of the most interesting ideas I've heard that I like is the concept of just going ahead and putting everything pertinent, or most things pertinent, on a website," McCann said. "I would think that that would maybe reduce the strain on the system."

Almost immediately after reforms were passed, exemptions started being carved out.

Last year, a bill was passed to exempt public employee evaluations from FOIA requests. Gov. Pat Quinn used his amendatory veto power to limit that to police officer evaluations, but the legislature overrode the veto.

"If someone's got a personal problem, they correct it, they have great evaluations after that - if we start FOIAing that, people will focus only on the negative," Rep. Raymond Poe, R-Springfield, said. "To protect people's integrity, we ought to not do that."

Efforts to create further exemptions persist.

The House on Friday passed a measure to keep the names of Firearm Owner Identification card holders secret, and both chambers are looking at other areas to exempt.

"One of the easiest ones (concerns) to address is that it is not clear in the original legislation that units of local government … any entities that conduct recreational programs for children, it's not clear that they are exempted," Sen. Pamela Althoff, R-McHenry, said.

"There are certain standards that we follow … to protect our youth. Unfortunately, we think this is an oversight in the legislation."

The legislature is also looking at a way to have birth dates redacted from public records requests, Althoff said. Currently someone receiving a FOIA request has to ask permission from the attorney general's office to delete birth dates, she said.

Sen. Edward Maloney, D-Chicago also introduced legislation to stop "vexatious FOIAs," putting a limit on the number of requests someone who isn't with the news media can file in a single year. The limits were too narrow, however, and are currently being negotiated, Maloney said.

Andy Brownfield can be reached at 782-3095.