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Opposition to FOIA rewrite, what is the real reason?

Tuesday, Aug 4, 2009

[posted by Mike Murray]

* Yesterday, the Illinois State’s Attorneys Association and the Illinois Municipal League sent separate letters to Gov. Quinn that lobbied against the proposed FOIA rewrite bill, which passed both chambers by a total vote of 174-1 and is currently sitting on Gov. Quinn’s desk.

The letters deal with different specific areas for concern, but in general, both organizations are opposed to the rewrite of FOIA if it creates a public access counselor…

In separate letters to Quinn, the Illinois State’s Attorneys Association and Illinois Municipal League portray the new FOIA bill as too costly, a threat to law enforcement, an undue burden on local governments and a usurpation of prosecutors’ duties by the Illinois Attorney General’s Office, among many other things.

Of particular concern to both groups is what we consider perhaps the most important part of the new Freedom of Information Act: the establishment of a Public Access Counselor within the attorney general’s office who would act as the final authority in cases where a government body has denied a request for records, documents or other information.

* There is a good deal of skepticism in in the policy community regarding the true motivations for their opposition to bill…

Under the bill, local governments can forward FOIA requests to the public access counselor, abide by whatever decision the counselor makes and be released from all legal liability. Citizens denied requests can also seek review from the public access counselor. That’s a good deal for citizens and for government, Smith said.

“In fact, this bill makes your [municipalities] life easier,” Smith said. “We are here and in need of this law because public bodies and municipalities and the state has thumbed its nose at FOIA on the backs of citizens for years and years and years and years.

“I think public bodies have gotten very comfortable with a toothless law,” Smith said.

* Phil Kadner also questions their motivations…

Brown said he was surprised the letter has generated “so much attention.”

Maybe he is unaware that for 20 years good government groups have been trying to rewrite the law. Maybe he’s unaware that powerful public officials in this state have always opposed it.

All I know for sure is that state’s attorneys throughout Illinois, who have never done anything to make the bad old law tougher, don’t like the new and improved one.

And that makes me wonder who they’re really representing.

* And the SJ-R Editorial Board does not pull any punches…

The Illinois Municipal League, meanwhile, tells Quinn that the new FOIA bill is nothing less than a threat to public safety.

“It is regrettable that there may be cases where municipalities will be forced to lay off firefighters and police officers so that they can afford more FOIA lawyers and other responders to help comply with this ‘primary duty,’” the IML writes.

The IML goes on for six pages listing details of problems it sees with the bill, but we will boil them down to this: This law will make it way more difficult for government bodies to deny citizen requests for government records, documents and information.

Likewise, we’ll summarize the state’s attorneys’ objection to creation of the PAC system: This law threatens our power, even though it’s power we’ve almost never used before.

I don’t know if their motivations are sinister or not, but it’s hard not to have questions.

* Related…

* Problems with Proposed Lobbying Changes: One of the hit-or-miss bills that passed the General Assembly this year was SB 54, which, among other things, made substantial changes to the Lobbyist Registration Act (LRA). The genesis of the LRA portion of the bill is plainly found in HB 736, which ICPR supported, but SB 54 differs in some key ways.

- Posted by Mike Murray        

19 Comments
  1. - My Kind of Town - Tuesday, Aug 4, 09 @ 10:33 am:

    Police Internal Affairs investigations and reports are confidential because confidentiality encourages reports of misconduct, and disclosure has a chilling effect on them. Opening these reports to the public is similar to allowing public access to employee personnel files.
    Disclosure of some municipal affairs (contract negotiations, injury claims, and others, will likely increase a municipality’s cost of doing business, which will put additional strain on the taxpayer. Disclosure also may set standards for private enterprise that will disrupt markets dramatically.


  2. - Ghost - Tuesday, Aug 4, 09 @ 10:34 am:

    The SJ-R is dead on. its all about the power. This will save municipalities all those legal fees they whine about. They are subject to legal fees for wrongful denials. If the counselor supports a denial, they are protected from those fees! The onyl way they expose themselves is a worngful denial, and they are exposed under the current law. this adds protection!


  3. - slinger - Tuesday, Aug 4, 09 @ 10:35 am:

    The FOIA bill is a disaster if anyone cares to read it. It will create a bureaucratic bottleneck of epic proportions. It is one of the worst thought out attempts to solve a problem I’ve seen. Because it is Lisa Madigan’s proposal the journalists in Illinois will defend it at any cost.


  4. - Curious - Tuesday, Aug 4, 09 @ 10:43 am:

    You refer to Brown but do we know what which Mr. Brown he is?


  5. - Ghost - Tuesday, Aug 4, 09 @ 10:45 am:

    Slinger, identify a single problem please to back up your generalization and fear mongering.


  6. - Judgment Day Is On The Way - Tuesday, Aug 4, 09 @ 10:47 am:

    Ok, here’s the other side of the issue - the “reality” part of the issue.

    Yesterday (08.03.2009), I worked with a county government here in IL to put up a massive amount of their current year (2008 pay 2009) tax extension information on their website - literally almost everything one would want to know. The data is all searchable, printable, etc.

    They are doing this all on a shoestring, in terms of resources. Their website is old and outdated, but it works for them, because again, they don’t have a massive amount of resources to pour into this process.

    That’s where the problem is - many, many tax district just don’t have the money, and it’s getting worse fast.

    This new FOIA legislation puts state “arbitrators” out there to oversee FOIA requests, and if they say “provide it”, well, what comes first?

    I know of currently existing situations where a number of outside entities are making repeated FOIA requests for complete real estate data files, records of who are getting property tax exemptions and how much, back tax and tax sale records on properties, and wanting it all DIGITALLY for reproduction cost (in their opinion, $50 is fair). Repeat: And they want it frequently.

    What takes priority? - services for local taxpayers, or commercial purposes? Because even though there are provisions in FOIA supposedly covering this, the IL Attorney Generals Office has punted on this issue.

    It’s one thing to just get access to the information from a FOIA request - it’s a whole different issue when outside interests are using FOIA as a means to obtain digital files of all sorts of varied information for next to no cost on a repeated basis.


  7. - Ghost - Tuesday, Aug 4, 09 @ 10:59 am:

    === This new FOIA legislation puts state “arbitrators” out there to oversee FOIA requests, and if they say “provide it”, well, what comes first? ===

    actually the current FOIA law mandates that the information be provided, AND lets the requestor obtain all their costs of filing a lawsuit including attorney fees if they win in a court case to compel what the law already requires.
    The ““arbitrators” provide a safe harbor for denials. Right now if you deny a request under a FOIA exemption, and get it wrong, even if you acted in good faith, you have to pay the other sides attorney feres and costs! You think budgets are tight now, just wait until they have to pay all those lawyer fees.

    However if the “arbitrators” say you do not have to disclose, then you are protected from these types of fees.

    On the reimbursement side, that is the current law, not something new. One of the cases on this tax payer data noted that the municipaty was trying to charge thousands of dollars per copy!!! but the data was already compiled and exisitng in the electronic format. FOIA and transparency should not be revenue generators.


  8. - slinger - Tuesday, Aug 4, 09 @ 11:02 am:

    ghost…..all complaints on FOIA re: thousands of Illinois public bodies funneled through one agency, the AG’s office. Does that seem logical to you?


  9. - Carl Nyberg - Tuesday, Aug 4, 09 @ 11:16 am:

    The Cook County State’s Attorney sucks on open government issues.

    So, I would discount any whining coming from that office.


  10. - in the know - Tuesday, Aug 4, 09 @ 11:19 am:

    and ghost, what about the horrible delays reported by the SJ-R against the AG’s office on routine FOIA requests, like for example, providing a copy of the FOIA itself. And now THEY will be the final arbiter for ALL disputes statewide? REALLY? FOIA needs to be improved, but with a thoughtful bill, not a pandering reelection missive.


  11. - in the know - Tuesday, Aug 4, 09 @ 11:25 am:

    how come cases can only be heard in Cook or Sangamon rather than in the courthouse in the community where all of the other parties reside?


  12. - in the know - Tuesday, Aug 4, 09 @ 11:31 am:

    If this idea is so good, then why is the General Assembly exempt?


  13. - Secret Square - Tuesday, Aug 4, 09 @ 12:00 pm:

    To answer “In the Know’s” questions:

    1. The headquarters of most state agencies, including the AG, are in Cook or Sangamon counties.

    2. Because the GA writes and rewrites bills on very short notice, generates huge volumes of material, and also schedules committee hearings and votes on extremely short notice, it would be impossible for it to abide completely by the requirements of either FOIA or the Open Meetings Act (which also will be “enforced” by the AG’s Public Access Counselor under this bill).


  14. - Judgment Day Is On The Way - Tuesday, Aug 4, 09 @ 12:38 pm:

    Originally posted by Ghost:
    “One of the cases on this tax payer data noted that the municipality was trying to charge thousands of dollars per copy!!! but the data was already compiled and existing in the electronic format. FOIA and transparency should not be revenue generators.”

    Just because data exists digitally, does not mean that it’s always a snap to provide under FOIA. You might think it’s easy, but once you have to do it (time and time again), it can easily turn into a different story.

    Try duping a 150 Mb. file of raw data. That’s easy - just write it to a CD-R. Oops, why can’t you email us the file as an attachment? Now, life starts getting to be fun. Ever spent 30 min. on the phone trying to explain to the village idiot how to unzip a data file, because that was the only way you could email it to them? (which you told them that was how it was going to have to be done in the first place, and they agreed to it).

    And then they want file layouts (which are ALWAYS proprietary, and often copyrighted, especially if coming from a system purchased/licensed from a non-governmental third party). And then when the file layouts aren’t descriptive enough (which is say, only about 95% of the time), they want to be able to call you for hours on end asking you all sorts of questions.

    And in the meantime the limited IT support (and “limited” barely covers it) has real users out there who need assistance so they can take care of issues for actual taxpayers.

    And as to “thousands of dollars per copy” - what was it, a GIS database, or let’s say the entire real estate tax data file for the likes of Kane or Will Counties. You do have some realization of exactly how expensive those digital databases are, and the ongoing maintenance costs, right?


  15. - Judgment Day Is On The Way - Tuesday, Aug 4, 09 @ 1:02 pm:

    Originally posted by Ghost:
    “The “arbitrators” provide a safe harbor for denials. Right now if you deny a request under a FOIA exemption, and get it wrong, even if you acted in good faith, you have to pay the other sides attorney fees and costs! You think budgets are tight now, just wait until they have to pay all those lawyer fees.”

    You want to know what the end result will be of those excessive “lawyer fees”? There won’t be any digital databases, because finding money to acquire software (either internal development, which is highly unlikely) becomes the lowest priority. The records will just get stuffed in file cabinets, and filed away in storage boxes. When you ask them for digital copies, no worries, the clerk(s) will stop laughing eventually.

    You want to go ahead & FOIA the records, no problem. We’ll show you where the paper records are, give you complete access to the paper index books, provide you access to the storage areas, and you can have at it. See you in a couple of weeks - and no, we don’t pay for cleaning bills.

    That’s reality.


  16. - wordslinger - Tuesday, Aug 4, 09 @ 1:40 pm:

    We’re not talking troop movements and missisle launch codes here.

    It should be assumed a government document can be released, and indeed, posted online, with obvious exceptions regarding personnel, land acquisition, litigation, etc.

    If the local governments had lived up to the spirit of the original law, they wouldn’t have a problem.


  17. - DunderMifflin - Wednesday, Aug 5, 09 @ 1:53 am:

    “It should be assumed a government document can be released, and indeed, posted online, with obvious exceptions regarding personnel, land acquisition, litigation, etc. If the local governments had lived up to the spirit of the original law, they wouldn’t have a problem.”

    Should, Should, Should….

    Who’s going to pay for it? Scanners, Indexing services, Web Servers, and Scan-wallas don’t come without their price.

    Take away the budget hit of providing records (staff time, staff time, staff time, not copy costs!) and the bulk of the resistance goes away.


  18. - wordslinger - Wednesday, Aug 5, 09 @ 7:41 am:

    Dunder, it’s 2009. If you think putting records online (instead of stuffing them in a banker’s box in the basement) is some Herculean task, maybe you’re not using your imagination.


  19. - DunderMifflin - Wednesday, Aug 5, 09 @ 11:10 pm:

    word-
    Cheap, Fast, Secure - pick any two. I didn’t say it was impossible, I said it was expensive.

    You’re the one who lacks imagination, if you can’t envision the volumes of documents that government produces and cross reference that with shortened revenues of late and the usual inertia that comes with a government project…


Sorry, comments for this post are now closed.


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