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D-300, Sears and FOIA

District 300 is seizing the opportunity to say "we told you so" regarding the Sears tax break granted by state lawmakers, which allows me to seize the opportunity to educate you on the pitfalls of the latest FOIA loophole those lawmakers enacted.

Two weeks after state lawmakers signed off on a $275 million deal to extend Sears' economic development area (EDA) to keep its corporate headquarters in the state, the company announced it was closing 120 stores (none so far in Illinois, according to our McHenry County Business Journal).

District 300, which fought hard to get a fairer share of the revenue pie from Sears' corporate headquarters in Hoffman Estates (for which they ended up "reluctantly satisfied"), pulled no punches on hearing the news. Spokeswoman Alison Strupeck told Northwest Herald journalist Jane Huh that people should question " ... whether these so-called 'incentives' for Sears were actually a bailout, along the lines of the bank bailouts and car company bailouts."

But it was Strupeck's comment at the end of Huh's story that got me thinking about something else:

"Many taxpayers and voters in the D-300 community spent the last few months taking their own personal time to educate state leaders about the illogic of providing massive tax breaks to a private company in dire financial straits, especially when most of those tax breaks would directly harm the local school system," Strupeck said.

A group of four D-300 mothers and taxpayers tried to do just that in asking the Village of Hoffman Estates for as much information as they could get on the EDA under the Illinois Freedom of Information Act.

The women sent the village a total of 10 FOIA requests, all dated Sept. 16, asking the village for records pertaining to the Sears EDA. Besides the original 1990 agreement, the requesters asked for meeting minutes and recordings, money paid to related lobbyists, emails and memos, and any audits, dating back to 2000.

But it turned out that the requesters' ambition – and 10 FOIA requests at once is ambitious – ran afoul of a change to FOIA that had just become law three weeks prior.

The similar nature of the 10 requests, and their filing dates, allowed the village to lump them together, which gave it under the new law the ability to wait much longer to respond. Under the change made by House Bill 1716, requesters who file seven or more FOIAs in seven days can be labeled as a "recurrent requester". In plain English, the new provision gave the village 21 days to respond (note the law doesn't say 21 days to provide the information) rather than the five days mandated under the law.

Missy Graf, one of the four requesters, was taken aback. She is no stranger to FOIA – she has filed them with D-300 – but she scratched her head wondering why filing two requests with Hoffman Estates made her a "recurrent requester."

"This was really weird, because this was the first time I had ever filed [FOIAs] with Hoffman Estates, and I filed two," Graf told me.

To requester Kathleen Burley, who submitted one of the FOIA requests, time was now even more of an enemy. Every day that passed was one less day to get whatever they found – or didn't find – to legislators who would be voting on the EDA extension. Burley ended up traveling to Springfield four times on her own dime, and testified before the House Revenue Committee.

Hoffman Estates replied to the four requesters in mid-October, just as the district began traveling to Springfield in earnest. Burley's request – meeting minutes and video recordings of any meetings in which the EDA extension was discussed – was rejected on account that no such records existed.

I asked Burley whether it would have helped their cause if they would have had more time to collect information through FOIA and sift through it.

"Maybe yes, maybe no," Burley answered. "If we would have gotten all the documents, maybe we would have been able to give a bigger picture to the legislators."

Graf is less optimistic. She ended up not pursuing the FOIA any further. Besides the demoralizing wait, she was told three weeks after her request that whatever it was the village did find would cost her $43 for copies – she had originally asked for the documents in an electronic format.

"Honestly, the biggest thing I learned from all this is that legislators are in business for business, and not for their constituents," Graf said.

As a proponent of FOIA as a tool to empower citizens to keep their government accountable, hence the title of my blog, the lesson to be learned is this: It's best to put all your eggs in one basket if you are filing a FOIA request for multiple pieces of information. It's better to have a government ask for a small delay due to the size of your request, rather than give government carte blanche to get to your FOIA when they feel like it because you are a "recurrent requester."

As for that FOIA change that the four ladies ran across, there could be a lot more where that came from. Your lawmakers since the new and improved FOIA took effect in 2010 have filed bill after bill seeking to scale back your right to know.

And as I'll remind you until I'm blue in the face, your local governments – cities, schools, townships and your McHenry County Board – are spending your taxpayer dollars to help gut FOIA.

After all, we can't have taxpayers who have to make up whatever corporate tax breaks that lawmakers dish out turning over stones to see what's underneath ...

Senior Writer Kevin Craver can be reached at kcraver@shawmedia.com.

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