It took Ed Mrkvicka Jr. a year under the improved Illinois Freedom of Information Act to get a two-page state disciplinary report about a real estate agent.
The Marengo resident and his daughter filed two FOIA requests with the Illinois Department of Financial and Professional Regulation. Not only did the agency ignore the request, but it also had ignored the Illinois Attorney General Public Access Counselor’s order to submit the documents for review.
Suffice it to say, Mrkvicka doesn’t think highly of the new and stronger law.
“It’s tantamount to fraud to let Illinois believe that we in fact have a [Freedom of Information] law that has teeth in it, because we don’t,” Mrkvicka said.
Audits of governments’ compliance with the law – both before and after the reforms took effect – lend weight to Mrkvicka’s skepticism.
Watchdog groups before the reforms found mass noncompliance among Illinois’ local governments. A new audit two years into the stronger FOIA finds that little has changed.
The Illinois Campaign for Political Reform submitted FOIA requests to 400 governments statewide – 43 percent of them violated the law by never even responding to the request, according to its April report.
The result mirrors pre-reform analyses done by The Associated Press and the Better
Government Association showing that many of the state’s 7,000 units of government don’t provide the public with the public records paid for by their tax dollars.
“It shows we have a lot of work to do to ensure the public has access to public records,” campaign Deputy Director David Morrison said. “I think the 2009 improvements to the statute on paper are immensely valuable, but the bottom line is, if the government is going to thumb their nose at you, you have to fight for your right to open records.”
State lawmakers in the months after the 2009 impeachment and indictment of former Gov. Rod Blagojevich approved sweeping reforms to a FOIA law that many critics considered far too weak and easy to abuse. A number of horror stories also helped prompt the overhaul, such as a Wheaton taxpayer’s 3 1/2-year effort, which went all the way to the Illinois Supreme Court, to view a school superintendent’s contract.
The reforms, drafted by Attorney General Lisa Madigan with the help of media and good-government groups, shortened the response time from seven days to five, tightened up exemptions, and capped what governments could charge.
It made the Public Access Counselor the appeal authority – under the old FOIA, denials were appealed to the same body that denied the request, and the sole recourse after the appeal was to take the body to court. Reforms also gave the counselor binding authority to enforce the law, and for the first time imposed penalties for willfully violating it.
And examples of willful violations in Illinois – the last state to adopt a FOIA – are plentiful.
The more things change
In 2006, the Better Government Association performed the same experiment under the old FOIA that the Illinois Campaign for Political Reform just did under the new one.
The BGA requested a list of employees from more than 400 state governments, about four in each of its 102 counties. More than 60 percent of them failed to comply. And like the recent audit, about 40 percent never even responded to the FOIA request.
The BGA report said requesters encountered “blatant resistance, numerous delays and arbitrary obstructions.” A library official threatened to “report” one requester as a “crook.” Another requester got a call from a “federal agency” at the behest of a soil and water conservation district.
And the title of the report, “Curiosity Killed the Cat,” came from a veiled threat made to a requester by a school superintendent.
The Illinois Associated Press encountered similar hostility in a 1999 investigation in which it sent undercover journalists to more than 400 government offices statewide to view public records such as meeting minutes. In two-thirds of the cases, the local government did not comply, and public officials often interrogated requesters as to why they needed the information, which requesters are not obligated under the law to disclose.
In one case, a sheriff wadded up and threw away the requester’s copy of FOIA and said, “I don’t have to tell you nothing.” In another, a deputy pulled over a requester at the government’s request to give a lecture on small-town etiquette.
The AP’s investigation shocked then-Attorney General Jim Ryan, who proposed a bill to allow his office to enforce the act. It passed the House, but then-Senate President James “Pate” Philip would not bring it to a vote. Among other things, Philip cited overwhelming resistance to the idea by local governments.
A 2011 investigation by the Northwest Herald showed that our county, municipal, school and township governments are paying lobbyists with taxpayer dollars to advance legislation curtailing open-government laws, and to fight legislation strengthening them.
Lawmakers have proposed numerous bills aimed at scaling back the new FOIA – the first successful bill came two weeks after it took effect on Jan. 1, 2010.
Changing the culture
In some ways, the new audit’s findings are perplexing, given that FOIA now requires every government to appoint a FOIA officer who must undergo annual training.
But to Morrison of the campaign for political reform, Illinois’ culture of secrecy and corruption won’t be changed overnight. The sheer number of local governments in Illinois, which has far more than any other state, makes the task of oversight even more daunting.
“It may just be that this is a cultural shift that has to filter through to every unit of government,” Morrison said. “Many of them act like public records are their records, and anyone sniffing around is suspect. That’s the attitude that has to change.”
To Citizen Advocacy Center community lawyer Maryam Judar, the problem is that the Public Access Counselor’s office is not using its enforcement powers to bring recalcitrant governments in line. Judar said her group is helping at least two people who have been forced to take governments to court because they will not release documents that the office has said in advisory opinions must be released.
“We’re disappointed because in order for the act to be fully effective, the [Public Access Counselor] must use his or her binding power,” Judar said. “The reason we’re disappointed is because they’re not using it very often.”
The office gets thousands of requests each year from the public to help loosen public bodies’ grip on information, spokeswoman Maura Possley said. She said that over time, binding opinions and settled disputes will help public bodies understand the law.
“Over time, the PAC’s efforts, paired with the public’s drumbeat for change, will ensure that the culture in Illinois government catches up with the significantly strengthened transparency laws,” Possley said.
To Mrkvicka, the Marengo FOIA requester who spent a year to get “something which should have taken 10 minutes,” there’s nothing accidental about the delays, and it’s not about ignorance of the law. He said public bodies intentionally make getting information so complicated that requesters decide it isn’t worth it and give up.
Statistics from the attorney general show that the vast majority of FOIA requests come from the public, not the media.
“How can we have a transparent government when local governments make sure you can’t have information that allows you to make intelligent decisions?” he said. “They make sure they make you think that you’re the problem.”
Government of the government, for the government, and by the government
Audits of Illinois’ more than 7,000 units of government have shown widespread noncompliance with the Illinois Freedom of Information Act, even after a far stronger version of it took effect in 2010:
• A 1999 audit by The Associated Press found that more than two-thirds of the 400 governments they visited statewide did not comply with requests for public information. The investigation prompted former Attorney General Jim Ryan to try to strengthen the law, but the Senate president never called it for a vote, citing opposition from local government lobbyists.
You can read the AP’s report at shawurl.com/9wo.
• More than 60 percent of the 400 local governments audited in a 2006 Better Government Association investigation failed to comply with FOIA. Almost 40 percent never responded to the FOIA request.
You can read the BGA’s report online at shawurl.com/9wc.
• In April 2012, more than two years after the new FOIA took effect, more than 40 percent of the 400 governments audited by the Illinois Campaign for Political Reform never responded to the FOIA request.
You can read the ICPR’s report online at shawurl.com/9wb.
Sources: Better Government Association, Illinois Campaign for Political Reform, Northwest Herald archives
About this series
“No More Excuses” is the Northwest Herald’s ongoing series about the public’s right to know in Illinois.
On the Net
You can learn more about the Illinois Freedom of Information and Open Meetings acts at foia.ilattorneygeneral.net.