FALLING SHORT ON FREEDOM OF INFORMATION
State public access counselor’s office is short-staffed — and its rulings are frequently ignored, analysis finds
When Larry Young started requesting records from police, he just wanted to find out what had happened to his daughter, Molly.
More than five years after she was found shot to death in her exboyfriend’s apartment in downstate Carbondale, Young is still fighting law enforcement agencies for records under the Illinois Freedom of Information Act, or FOIA.
Young’s battle has become a long, often painful example of both the promise and weakness of government-transparency laws in Illinois, including an overwhelmed and inconsistent enforcement system overseen by outgoing Attorney General Lisa Madigan.
In 2009, Madigan and state legislators crafted a new law they promised would help citizens like Young by improving access to government records and proceedings. Under one of its key provisions, the attorney general’s office was given authority to interpret and enforce the state Freedom of Information and Open Meetings acts.
Often, though, the public still gets shut out. Government bodies around the state routinely ignore or misinterpret the FOIA and OMA, according to a ProPublica Illinois analysis of the nearly 30,000 appeals the office of the public access counselor, or PAC, has received.
The PAC’s staff of more than a dozen attorneys struggles to wade through the cases, regularly taking months or even years to resolve them. When it does rule, it seldom uses its full authority to order government agencies to comply with the laws. And in the rare cases when it does, the office’s orders are sometimes blown off. Violators face few consequences.
Madigan was not available for an interview, according to a spokeswoman. But other officials in her office said the PAC has helped thousands of people access government information while continuing to lead a shift in the culture of the state toward more transparency.
“We started from scratch and created this, and I think we really do help people every day,” said Ann Spillane, the attorney general’s chief of staff.
“We have areas where we need to improve,” she acknowledged. But in addition to its rulings, Spillane stressed that the office provides education to the public on open-government laws, including through a hotline. “We’re one of the rare places in government where you can pick up the phone and talk to a lawyer.”
Spillane added that the office could be more efficient if compliance with the open-government laws was a higher priority for officials around the state.
The Freedom of Information Act promises that “all persons are entitled to full and complete information regarding the affairs of government.” Under FOIA, citizens are allowed to request and obtain copies of records generated by local and state government agencies. Journalists and watchdog groups make regular FOIA requests, but so do law firms, nonprofits and unaffiliated residents who want or need information.
But the law has limits that are not always defined clearly. Personal or private information, such as home addresses and phone numbers, are exempt. So are records that would interfere with a pending law enforcement investigation, reveal terrorism prevention plans or disclose trade secrets.
If a government body rejects a FOIA request — or doesn’t respond within five working days — the requester can ask the public access counselor to review the case. Eventually it may issue a ruling — either a “determination,” which is advisory, or a “binding opinion,” which orders a resolution, usually in favor of the requester.
Similarly, citizens can ask the PAC to review whether government bodies have violated the Open Meetings Act, which mandates that public business be conducted in the open except in certain circumstances, such as disciplinary proceedings for employees.
“I think it’s incredibly important for the body or entity deciding these administrative appeals to be independent in as many ways as possible,” said Adam Marshall, a staff attorney for the Reporters Committee for Freedom of the Press. “Part of the reason we have a separate branch of government for the judiciary is the appeals process.”
Sarah Pratt, who has served as the public access counselor since 2013, said the office’s decisions are never based on politics but on the law. “Frankly, I’ve never, in more than 25 years in this office, and certainly not in the last eight years, done anything or been advised to do anything for political reasons,” she said.
Between the start of 2010 and mid-August 2018, the PAC received more than 28,000 requests to review potential violations of the two transparency laws. The vast majority — 93 percent — involved FOIA. More than 80 percent of the requests came from individual citizens, while the rest came from the media, businesses and other government bodies.
As of August, the PAC had closed about 26,000 of the cases, and in more than half, it ruled against the requester or closed the case for technical reasons.
In contrast, about a third of the cases ended in favor of the citizen or organization seeking information or transparency.
And while most FOIA and OMA reviews were closed within two months, more than 3,800 took the PAC longer than a year to resolve, including about 500 that went on for more than four years.
“We started with a backlog because of the onslaught we got from the start,” said Spillane, the attorney general’s chief of staff. “We are very conscious of the fact that we have to get faster. We have to do a better job of triage up front.”
Under the laws, the PAC has 60 days to issue a binding opinion. If the case is too complicated to make that deadline, or if the PAC’s attorneys aren’t able to move faster, the
most the office can do is issue an opinion that’s nonbinding.
Binding opinions are rare. While closing 26,000 cases through midAugust, the PAC only used the weight of the law to issue binding opinions in 127 of them — less than half of 1 percent of the total. And four of those opinions sided with government bodies blocking the public from information.
Officials in the attorney general’s office said they issue binding opinions on issues of broad public interest, and each one is researched to ensure it could withstand a court challenge.
“Our binding opinions in particular we’ve been exceedingly careful about,” Spillane said. “We’ve only been overturned once. We thought it would be a devastating blow to our credibility if we didn’t have success with the courts.”
Candidates to replace Madigan, who is not running for re-election in November after four terms, said the office needs to step up enforcement. Both Republican Erika Harold and Democrat Kwame Raoul, who as a state senator helped write the law, are promising to press the General Assembly for more money to add staff for the public access counselor’s work.
As Larry Young discovered, enforcement of the transparency laws, including the PAC’s decisions about when to use the weight of its authority with binding opinions or even subpoenas, can have serious consequences.
Around noon on March
24, 2012, Young got word that Molly, then 21, had been found dead in her ex-boyfriend’s apartment.
No one has been charged in Molly’s death.
In April 2013, after reading in a news story that state police still considered their investigation open, Young learned he could use FOIA requests to seek information.
“I didn’t know how to write them,” he said. “I didn’t know anything about them.”
In May 2013, the state police provided some information, but it was “heavily redacted,” Young said. The blacked out material even included half of a letter Young himself had written.
And the police still wouldn’t give Young an autopsy report, his daughter’s journals or a number of other records. So over the next four years, he sent out nine more FOIA requests seeking investigative reports and recordings pertaining to Molly’s death.
After some of his requests were denied, Young appealed to the PAC. The back-and-forth dragged on as the police departments offered shifting arguments for not releasing all the records — and the PAC responded by issuing nonbinding opinions siding with Young.
A nonbinding opinion, Young said, “isn’t worth the paper it’s printed on.” The police refused to produce all the records from his daughter’s case.
Finally, the PAC issued a binding opinion in February 2016. The state police were ordered to provide Young with copies of the photographs, and it did.
Young said he is not done — fighting for records or to find out what happened to his daughter.
“The purpose of the FOIAs is to find the truth,” he said. Without FOIA requests, “It all would’ve been swept under the rug.”