CBA Record

CBA HOSTS FOIA SEMINAR Information is Power By Amy Cook

CBA Record Editor-in-Chief T 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.

Now save up to 26% with UPS! All thanks to the Chicago Bar Association

Take advantage of new savings with UPS offered to you as a member of the Chicago Bar Association. We have recently enhanced our relationship with UPS in order to provide the best value to our members. You can now save up to 26% off Express Shipping with the peace of mind that comes from using the carrier that delivers more packages on time than anyone. Simple shipping! Special savings! It’s that easy! Just go to www.ups.com/savings for details or to enroll. For more information call (800)325-7000.

18 JULY/AUGUST 2015