On August 17, 2009, Governor Pat Quinn signed into law Public Act 96-0542, a comprehensive overhaul of the Illinois Freedom of Information Act (5 ILCS 140/1 et seq. (the “Act” or “FOIA”)). The new law, which takes effect January 1, 2010, attempts to foster greater transparency by creating a presumption that all records are public, endowing the Office of the Illinois Attorney General with new oversight and enforcement powers, and outlining a clearer process for FOIA requests. However, the legislation also creates additional burdens and responsibilities for local governments. This article will focus on the changes in the law that promise to impact local governments most significantly.
Public Access Counselor -- Foremost among the many new amendments to the Act is the creation of a Public Access Counselor (“PAC”) position in the Office of the Illinois Attorney General. The PAC is charged with the power to review and determine whether a local government’s denial of a FOIA request was proper under the Act. The PAC will also have subpoena power and the authority to issue advisory opinions to public bodies. Moreover, the PAC’s decisions in particular disputes will be binding and reviewable under the Illinois Administrative Review Law (735 ILCS 5/3-101 et seq.). Previously, the process for review of a dispute regarding a FOIA request included an appeal to the “head of the public body.” No such process exists under the new law, as appeals will now be submitted directly to the PAC.
Training / FOIA Officers -- Another important change is that all local governments must now designate employees, officers, or members to receive required annual training on compliance with the new Act. The trainings will be developed and administered by the PAC. Moreover, each local government is required to designate one or more official or employee to act as its Freedom of Information officer(s). The Freedom of Information officer(s) will be responsible for accepting requests under the Act, ensuring that the local government responds in a timely manner to such requests, and issuing responses to requests. The Freedom of Information officer(s) will also be responsible for keeping records of all requests.
Exemptions -- While the personal privacy exemption still exists under the new law, it is no longer a “per se” exemption. Instead, the Act now exempts a narrow, clearly defined category of “private information” (e.g., social security numbers, driver’s license numbers, medical or financial records, personal telephone numbers, etc.) that is exempt from disclosure, as well as the disclosure of personal information that would result in a “clearly unwarranted invasion of personal privacy.” Additionally, if a local government wishes to assert either the personal privacy exemption or the preliminary draft exemption under the new law as a basis for denying a FOIA request, it must notify the PAC, who will review the claimed exemption to determine its applicability.
Responding to Requests -- Another change under the new law is that the time for responding to most FOIA requests has been condensed from 7 to 5 business days. The time of an extension for responding, if granted, is also now 5 additional business days instead of the previous 7 additional days. Moreover, local governments must now respond to all FOIA requests within the prescribed time frame or waive their right to assert exemptions like the personal privacy or preliminary draft exemption. Also, a local government may no longer charge copying fees if it responds late to a FOIA request.
Copying Charges Now Limited -- The new law further provides that copying charges imposed by local governments shall be limited to 15 cents per page for black and white copies, and that the first 50 pages in black and white are free, as long as they are letter- or legal-sized copies. For color copies or for a size other than letter or legal, a local government may not charge more than its actual cost. Actual costs shall not include personnel costs incurred in searching for and reproducing the requested records.
Expanded Definition of “Public Records” -- Under the new changes, “public records” now include electronic communications.
Civil Penalties / Attorneys’ Fees -- The new legislation also provides that, where a person denied access to copy or inspect records files suit for injunctive or declaratory relief, courts may impose civil fines of $2,500 to $5,000 upon local governments if it is determined that they have willfully and intentionally failed to comply with the law or have otherwise acted in bad faith. In addition, courts are now required to award attorneys’ fees to members of the public who are forced to resort to a lawsuit in order to access public records and who prevail in such litigation.
The sweeping changes to the Illinois Freedom of Information Act will most certainly necessitate a substantial overhaul of the Freedom of Information policies maintained by local governments. However, because the new law is not set to take effect until January 1, 2010, local government employees and officials will have a brief window of time to become familiar with the FOIA changes, any additional duties and responsibilities arising under it, and to work with their attorneys to revise policies and procedures accordingly. While this alert addresses many of the most important changes in the law, it is not exhaustive. Consequently, if additional questions should arise about any aspect of the new legislation, please contact your OBKC&G attorney for further guidance.
