Freedom of Information Act (Illinois)

The first Illinois statutes concerning public access to records involved county officers. A law enacted in 1887 granted public access to records in the possession of a county recorder, and other statutes granted access to records of a county clerk or board of supervisors. The courts also recognized the legislature's authority to grant access to records in 1867, and the public's right to copy records in 1907. In the following years, the General Assembly began to enact disclosure provisions into various statutes, but such provisions were non-uniform and pertained only to specific agencies. Not all agencies were covered by disclosure requirements, and in those cases where a statute did not apply, the courts came to rely on common law to preserve the public's access to information. Common law granted taxpaying residents of a village or school district the right to inspect and copy records.[10] However, appellate case law also held that private financial records submitted to a city government by franchise applicants were not public records, as they were private business records that happened to be in the possession of city officials.[11] Under common law, whether a document was considered a public record was based on the purpose of the law that related to that type of document. A record may be considered a public record for one purpose, but not another.[12] Common law was used to balance the public's right to know against competing interests, such as the rights to privacy and due process of the subject of the information, along with the government's ability to conduct its business efficiently and without undue interference. Due to a lack of guidance from the General Assembly, the courts often weighed these factors differently, arriving at inconsistent decisions for each case.[13]

The General Assembly enacted the State Records Act in 1957, and the Local Records Act in 1961. However, neither statute provided general access to records. The State Records Act was primarily concerned with the financial records of the state government.[13] In 1979, the Supreme Court held in Lopez v. Fitzgerald[lower-alpha 2] that while the Local Records Act requires the preservation of public records, it does not impose an obligation on agencies to allow access to those records.[14] Also, the Constitution of Illinois ensures that the financial records of local governments are open to disclosure, but since the Constitution also protects an individual's personal privacy, courts addressing constitutional questions were again faced with the balancing tests similar to common law.[15]

Exemptions under the State Records Act and Local Records Act were vague, but the laws did provide exemptions against invasions of privacy. Furthermore, common law recognized an exemption for "preliminary documents", applying to records that were "part of an investigation or decision making process upon which final action had not been taken".[16]

Barbara Flynn Currie introduced the legislation in the House of Representatives.

Illinois was the last state in the United States to enact freedom of information legislation.[17] The initial version of FOIA, labeled House Bill 234, was introduced to the House of Representatives by Barbara Flynn Currie on February 9, 1983. After consideration by the Judiciary Committee, the bill passed the House on May 25, 1983, and proceeded to the Senate. There, the bill was sponsored by Terry L. Bruce and passed on June 27, 1983, after being considered by the Executive Committee. The House concurred in the Senate's amendments the following day.[18]

The law was detailed and comprehensive in its attempt to fill the gaps left by the State Records Act and Local Records Act. The new law defined the scope of FOIA's provisions, and specified the process through which a person can request records from a public body.[19] The new statute codified the common law exemption for "preliminary documents". Courts no longer had to resort to common law balancing tests as frequently as before, unless privacy issues or preliminary documents were involved. FOIA became the exclusive disclosure statute for agencies not already subject to other disclosure statutes, and raised the minimum standards for disclosure above those previously granted under the common law.[20]

Governor James R. Thompson issued an amendatory veto[lower-alpha 3] on September 23, 1983,[18] which weakened the bill by expanding exemptions and removing criminal penalties for non-compliance, among other things.[22] His usage of the amendatory veto had been controversial during his administration.[23] After the Illinois Constitution of 1970 granted this power for the first time, no other governor had issued amendatory vetos more extensively than Thompson did, and his actions often created policy disagreements with the General Assembly.[24] Currie considered Thompson's veto a "substantial rewrite" of House Bill 234, and an "invasive abuse of the amendatory veto".[25] Michael Madigan, the Speaker of the House of Representatives, wanted to use the bill as a test case to challenge the Governor's amendatory veto power. However, proponents of the bill did not want to risk losing the case, which would have caused the bill to die.[26] Legislators ultimately did not consider whether the Thompson had exceeded his veto powers.[23] The General Assembly agreed to accept the proposed amendments on November 2, 1983. With Thompson's certification on December 27, 1983, the law was enacted as Public Act 83-1013, and it became effective on July 1, 1984.[18]

Even with the requirements of FOIA codified into law, its original version was criticized for weak enforcement provisions. Public bodies were unlikely to face repercussions when denying or ignoring FOIA requests. Requesters could seek assistance from the Attorney General's Public Access Counselor (PAC), who could mediate disputes and write letters to encourage public bodies to comply with FOIA. However, the PAC had no formal enforcement powers, and its capacities were merely advisory and non-binding. This left the practical burden on requesters to pursue lengthy, time-consuming litigation. Requesters were not likely to appeal to the courts, creating a natural deterrent that public bodies leveraged to avoid full compliance.[27]

An audit conducted by the Better Government Association in 2006 revealed that 62% of public bodies did not comply with FOIA, and 39% did not respond to FOIA requests at all.[28] The Better Government Association also conducted a survey in 2008 with the National Freedom of Information Coalition, ranking Illinois among the 38 out of 50 states receiving a grade of "F" for their versions of FOIA.[29][30] In addition, the public was contending with a history of corruption in Illinois, considered at the time to be one of the most corrupt states in the United States.[31] Governor Rod Blagojevich had several scandals during his administration, including corruption charges in December 2008 that led to his impeachment and removal from office.[32][33]

Starting in January 2009, Attorney General Lisa Madigan worked on draft legislation to amend FOIA with the Illinois Press Association, the Illinois Campaign for Political Reform, the Better Government Association, and Citizen Advocacy Center.[33] The legislation was introduced in the House of Representatives by Michael Madigan on May 27, 2009, as a floor amendment to Senate Bill 189.[lower-alpha 4] The bill passed the House the same day, then proceeded to the Senate, where it was sponsored by Kwame Raoul. The Senate concurred in the House's amendment on May 28, 2009. Governor Pat Quinn signed the bill, enacted as Public Act 96-542 on August 17, 2009.[34]

The legislation became effective on January 1, 2010, issuing the most sweeping changes to FOIA since the original enactment in 1984.[17] The amendments roughly doubled the size of the Act based on its word count.[35] The Illinois FOIA became considered one of the most liberal and comprehensive public records statutes throughout the United States.[36][37]

The changes narrowed the definition of "private information" to certain unique identifiers. The privacy exemption, which was previously used to deny access to information about the names, titles, and compensation of public employees, was also updated to require a balancing test between the "subject's right to privacy" and "any legitimate public interest in obtaining the information". The new rules also explicitly stated that settlement agreements, often withheld previously under the privacy exemption, are now subject to disclosure.[38]

Requesters were also allowed to submit complaints to the PAC, which became a more viable alternative to litigation because it leveled the "playing field" between two government agencies, rather than pitting private citizens against public bodies with more resources. The General Assembly formally recognized and granted additional enforcement powers to the PAC, by amending the Attorney General Act[lower-alpha 5] at the same time as FOIA. With these changes, the PAC could issue subpoenas and file lawsuits in the circuit courts to force compliance with a binding opinion or prevent a FOIA violation.[39]

The Illinois Municipal League, representing local governments, opposed the changes as "overly burdensome" and "unworkable". It further contended that the updated version of FOIA resulted in a "confusing and complex system for FOIA responses", and presented a "legal thicket" that is overwhelming to officials who process FOIA requests.[1] The Illinois States Attorneys Association also objected, as the Attorney General and the PAC acquired an expanded role under the new law. The Association suggested that the role of the state's attorney should be expanded instead.[40]

Watchdogs and other residents who frequently file FOIA requests had mixed reviews of the amendments. Peter Gonigam, a resident and journalist from Carpentersville, claimed that public bodies could still find ways to frustrate FOIA requesters under the new law, but liked the new appeals process through the PAC.[41] David Kidwell, a reporter for the Chicago Tribune, expressed concerns about "sweeping" exemptions that still remained, including the privacy or preliminary drafts exemptions.[33]

Two weeks after Public Act 96-542 became effective, the General Assembly quickly passed a law that exempted the performance evaluations of school superintendents, principals, and teachers from disclosure.[42] By the end of 2010, the General Assembly passed another law that exempted all public employees' performance evaluations from disclosure.[17] In 2011, more than three dozen bills were introduced in the General Assembly to amend FOIA, most with the goal of reducing disclosure requirements as a backlash to Public Act 96-542. The proposals included bills that would have reduced the rights of "vexatious" requesters, added more exemptions to FOIA, or allowed public bodies to charge higher fees.[43]

In 2015, the Center for Public Integrity reviewed every state's public records laws, giving Illinois a grade of "F". The group contended that the state's enforcement of FOIA is weak, and that public bodies often claim the exemption for requests that are "unduly burdensome". Still, Illinois ranked as the 15th most transparent state under the criteria used by the Center for Public Integrity.[44] Additionally, ProPublica and the Chicago Sun-Times published a report on the PAC in 2018, labeling it "an overwhelmed and inconsistent enforcement system". The PAC has rarely used its full authority to enforce FOIA, and violators have faced few consequences for ignoring the PAC's opinions.[45]

Governor Pat Quinn holds up a bill he signed into law moments before. The executive and legislative branches of government are considered "public bodies" under FOIA.

FOIA applies to all "public bodies" in Illinois. Public bodies include:[46]

• legislative, executive, administrative, and advisory bodies of the government of Illinois, including boards, bureaus, and commissions
• state universities and colleges
• local governments in Illinois including counties, townships, municipalities, school districts, and all other municipal corporations
• subsidiary bodies, such as committees and subcommittees, of the aforementioned entities
• School Finance Authorities created under the Downstate School Finance Authority Law[lower-alpha 6]

However, public bodies do not include child death review teams, the Illinois Child Death Review Teams Executive Council, regional youth advisory boards, or the Statewide Youth Advisory Board.[lower-alpha 7][46] Additionally, FOIA does not apply to quasi-governmental bodies, such as economic development or strategic planning groups.[47]

While the executive and legislative branches are subject to FOIA, the judicial branch is not. Therefore, FOIA does not apply to courts and entities that report to the chief judge, such as a probation department. The Illinois Courts Commission, an adjudicative body of the judiciary, is also exempt.[48] However, court proceedings and related documents are generally open to the public.[49]

The textual definition of "public bodies" in FOIA is nearly identical to "public bodies" under the Open Meetings Act,[lower-alpha 8] a related Illinois statute that requires meetings to be open to the public. However, the scope of "public bodies" is broader under FOIA, and includes individual officers and agencies who do not hold meetings. However, officials who are merely members of public bodies (such as members of a city council) are not separately considered "public bodies" in their individual capacities.[50]

Records held at the archives of the University of Illinois Library, a public body, are subject to disclosure if they pertain to the transaction of public business.

FOIA requires the disclosure of "public records", which includes records "pertaining to the transaction of public business, regardless of physical form or characteristics, having been prepared by or for, or having been or being used by, received by, in the possession of, or under the control of any public body".[46] Records related to public funds, payrolls, arrest reports, criminal records, and settlement agreements are also considered "public records".[51] Records of a public body's contractors are subject to disclosure, provided that the records directly relate to a governmental function. Public bodies cannot contract out their governmental functions to evade disclosure under FOIA.[52]

FOIA does not require public bodies to create new records that do not already exist, unless a different law requires the records to be maintained. Public records may be stored in a wide range of formats, including paper, electronic, photographs, and audio or video recordings.[47] When the records are available in an electronic format, public bodies must provide the records in the format specified by the requester. In some cases, the requested format might not be feasible to the public body, in which case the public body may opt to provide the records in a different electronic format, or on paper.[53]

When it enacted the original version of FOIA, the General Assembly replaced the common law test with a more explicit listing of the types of documents that are to be considered public records.[lower-alpha 9] A court could easily check this listing to determine whether a record clearly fell within one of the examples provided in the statute. If so, then the General Assembly intended its disclosure. On the other hand, if the record fit neither the listed examples of public records nor the exemptions from disclosure, then the court had to look to other sources, such as specific statutes governing the agency in question, prior to making its determination. Courts could also refer to case law under the federal FOIA, which has a very broad interpretation of what constitutes a public record.[55] The enumerated list of examples was removed by Public Act 96-542.[56]

A court ordered Chicago Mayor Rahm Emanuel to disclose messages related to public business stored on his private devices.

Emails and other communications stored on private electronic devices may be subject to disclosure.[57] City of Champaign v. Madigan was the first decision by an Illinois court addressing whether the private emails of government officials are subject to FOIA.[58] In that case, the Appellate Court found that members of a city council do not constitute a "public body" when acting individually, but they do act collectively as a "public body" once they have convened a meeting to conduct public business. By this interpretation, if a constituent sends a message to a city council member at home on their personal device, that message would not be subject to FOIA even if it pertains to public business. However, messages sent and received by elected officials during a city council meeting are public records, regardless of whether they communicated via personal devices not owned by the city.[59]

Regarding employees (rather than elected members) of the public body, the applicability of City of Champaign was unclear, as a legal expert noted that "executive branch employees" act on the public body's behalf.[60] In May 2016, the Circuit Court of Cook County clarified the matter when it ruled that personal emails of Chicago Mayor Rahm Emanuel may be subject to disclosure, even when stored on private devices.[61] Later that year, the Attorney General ruled in Public Access Opinion 16-006 that officers of the Chicago Police Department were required to disclose their work-related emails stored on personal accounts.[58] In 2020, the Appellate Court ordered the release of correspondence held on private devices of several Chicago officials, including the mayor, his staff, and the public health commissioner.[62]

Public bodies may redact information that is exempt from disclosure. Here, Elmhurst Community Unit School District 205 partially redacted the minutes of a school board meeting that was closed to the public under the Open Meetings Act.

In 1988, there were 29 exemptions from disclosure listed in the statute.[63] By 2011, FOIA contained roughly 45 exemptions from disclosure, codified in sections 7 and 7.5 of the act.[lower-alpha 10] Section 7 contains exemptions that cover private information, personal information, records related to administrative enforcement proceedings, and preliminary drafts containing recommendations or opinions. (Enumerated below in more detail.) Section 7.5 contains "statutory" exemptions, referring to independent statutes that exempt specific types of information from disclosure under FOIA. For example, performance evaluations for all public employees are exempt under section 7.5.[17] Noteworthy exemptions include, but are not limited to:[64][65]

• Information specifically exempted from disclosure by state or federal law.
• Private information, which includes unique identifiers and personal data such as Social Security numbers, driver's license numbers, employee identification numbers, biometrics, passwords, medical records, personal telephone numbers, personal email addresses. Private information also includes home addresses and personal license plate numbers, except when disclosure is required by law or when the information is compiled without possible attribution to a person.
• Personal information that, if disclosed, would constitute a "clearly unwarranted invasion of personal privacy", which means "disclosure of information that is highly personal or objectionable to a reasonable person and in which the subject’s right to privacy outweighs any legitimate public interest in obtaining the information". Information that relates to the public duties of a public employee is not considered an invasion of personal privacy.
• Law enforcement records that, if disclosed, would interfere with a pending or "contemplated" proceeding, disclose the identity of a confidential source, or endanger the life or physical safety of any person.
• Preliminary drafts, notes, or recommendations in which opinions are expressed or policies are formed. However, records that are publicly cited and identified by the head of the public body[lower-alpha 11] are not exempt from disclosure.
• Business trade secrets or commercial information that is confidential, and disclosure would cause competitive harm.
• Procurement proposals and bids until a final selection is made.
• Formulae, designs, drawings, and research data if disclosure would produce private gain or public loss.
• Educational records including test questions and scoring keys, and course materials or research materials used by faculty.
• Minutes of meetings closed to the public under the Open Meetings Act.
• Attorney communications protected by attorney–client privilege.

FOIA does not require public bodies to withhold information, and asserting an exemption is at the discretion of the public body.[66] All public records are presumed to be open to the public. If a public body wishes to claim that specific information is exempt from disclosure, it "has the burden of proving by clear and convincing evidence that it is exempt."[67] Thus, the law is broadly interpreted in favor of openness and disclosure, and exemptions are strictly construed.[68] In Lieber v. Board of Trustees of Southern Illinois University,[lower-alpha 12] considered to be the seminal case regarding FOIA, the Supreme Court held that as long as a public body can prove that the information falls within the scope of an exemption specified by FOIA, then the information is per se exempt from disclosure.[69]

Under the original version of FOIA, public bodies were given 7 working days to comply with a request, and were allowed to extend their deadlines by an additional 7 days under certain circumstances.[19] These timelines were shortened by Public Act 96-542, which required public bodies to respond to non-commercial FOIA requests within 5 business days.[73] Public bodies may extend their deadlines by 5 business days under certain circumstances, and must explain to the requester the reason for the extension. Additionally, requesters and public bodies may reach their own agreements to grant more time for public bodies to comply with the request.[74]

Requesters cannot be compelled to explain the purpose of their requests, except to determine whether the records will be used for a "commercial purpose". If the request is for commercial purposes, the deadline for the public body to respond increases from 5 to 21 business days. Commercial requests do not include those made by news, non-profit, scientific, or academic organizations.[75] Public bodies cannot deny requests solely because they have a commercial purpose. Although the original legislation effective in 1984 stated that FOIA was not intended "for the purpose of furthering a commercial enterprise," this statement was in the preamble, not in the body of the act. Therefore, the Supreme Court held in Lieber that it had no legal force.[76] Public bodies in local government have considered FOIA requests from large commercial entities to be among the most burdensome unfunded mandates.[77]

If a request is denied, the public body must issue its denial in writing, and provide the legal reasons for withholding the information.[78] Public bodies may deny requests as "unduly burdensome" if fulfilling the request would interfere with the public body's operations in a way that outweighs the public's interest in disclosure, and the scope of the request cannot be narrowed.[79]

During the initial response in April 2020 to the COVID-19 pandemic in Illinois, nearly 200 mayors and the Illinois Municipal League urged Attorney General Kwame Raoul to extend the deadline to respond to FOIA requests, as public bodies were operating with fewer employees and struggled to maintain core services. However, Raoul's office contended that it did not have the authority to suspend FOIA deadlines during the pandemic; only the governor or the General Assembly could do so.[80] In May 2020, the General Assembly considered a bill that would have postponed all FOIA deadlines by 30 days. The proposal was controversial, with opponents emphasizing the importance of transparency as governments confronted COVID-19. The office of Governor J. B. Pritzker opposed the measure, and it failed by one vote in the House of Representatives.[81]

Public bodies may charge fees for providing copies of records, according to a standard fee schedule that must be publicly available.[76] The bill initially proposed in 1983 stated that public bodies could charge a maximum of 50 cents per page, but this provision was deleted by the Senate in favor of allowing public bodies to charge the actual costs of copying the records. Additionally, the initial version of the bill allowed for a waiver of fees if the requester was "indigent". Governor Thompson struck this provision by amendatory veto,[lower-alpha 3] noting that there was no objective criteria to determine whether a person is indigent.[82] Starting in 2010, Public Act 96-542 set limits on the amount of fees that may be charged to a requester.[73] For black-and-white copies on letter or legal size paper, the first 50 pages are free, and additional pages may cost up to 15 cents per page. For other types of records, public bodies may continue to charge fees that cover the actual costs of copying or providing the required storage media.[53] Public bodies may waive fees if disclosure is in the "public interest", meaning that the information concerns the welfare or rights of the general public, and disclosure does not provide a personal or commercial benefit.[76]

Public bodies may not charge for staff's time spent searching for and reviewing the records.[76] An Illinois task force on local government found FOIA compliance to be an unfunded mandate, and agencies have reported high personnel costs to hire full-time FOIA officers.[83]

Under the original version of FOIA, if a public body denies a FOIA request, the requester must first appeal to the head of the public body.[lower-alpha 11] If the head of the public body affirmed the denial, or failed to respond within 7 days, then the requester could file litigation in court.[84] Public bodies were advised to appoint other employees to initially handle FOIA requests, so that the head could focus on appeals and obtain legal advice as needed.[85] However, this process was viewed as "perfunctory" and repealed by Public Act 96-542,[40] which allowed requesters to file litigation immediately after receiving the initial denial.[33]

The requester may appeal by filing litigation in the circuit court, and there is no deadline for the requester to file suit.[86] When litigation is filed, the court considers the matter de novo and conducts an in camera review of the records to determine whether the information is exempt from disclosure.[87] FOIA cases take precedence on the court's docket.[84] If the court finds that FOIA has been violated, it may provide injunctive or declaratory relief, ordering the disclosure of records. The court's orders are enforceable through its contempt powers.[86]

FOIA originally allowed the court to award attorney fees to a requester who "substantially prevailed" in litigation, but only if the records were "of clearly significant interest to the general public" and if the public body lacked "any rational legal basis" for denying the request.[86] However, the court could not impose civil penalties on the public body.[88]

Public Act 96-542 introduced civil penalties between $2,500 and $5,000 per violation, if the court finds that the public body "willfully and intentionally" violated FOIA.[89] The new law also imposed mandatory awards of attorney fees to requesters who prevail in litigation.[90]

The requester may also appeal to the PAC within 60 days of the FOIA denial. Unlike litigation, the PAC review process is available at no cost to the requester. However, FOIA requests to the General Assembly or its subsidiary bodies may not be appealed to the PAC. The PAC will review whether the FOIA request was properly denied, and may issue a subpoena to obtain more information. Requesters may not appeal through the PAC and the courts at the same time. If the PAC is already reviewing the matter when a lawsuit is filed, then the requester must notify the PAC, who will stop its review and take no further action.[91]

The PAC may issue a binding opinion within 60 days of receiving the complaint, and this timeline may be extended by an additional 21 days. If the PAC issues a binding opinion, the result is binding on the requester and the public body, but either side may continue to appeal in court under administrative review.[92] Binding opinions also establish precedent for other public bodies issuing FOIA denials under similar circumstances.[93] Binding opinions are rare, as they are issued for only less than half of one percent of complaints submitted to the PAC. The PAC generally issues binding opinions on "issues of broad public interest", and is careful to research each case to ensure that its opinions are upheld by the courts. Journalists and news organizations are more likely than private citizen requesters to receive a binding opinion.[45]

When the PAC declines to issue a binding opinion, it is no longer bound by any statutory deadlines to resolve the matter. It may issue a non-binding or advisory opinion, resolve the dispute through mediation, or decide to take no further action on the matter. Requesters often wait months or years before their appeals are reviewed by the PAC. Of the more than 28,000 appeals filed with the PAC from January 2010 through August 2018, over 3,800 appeals took more than one year to resolve, and about 500 took more than four years to resolve.[45]

Public Act 96-542 required public bodies to seek pre-approval from the PAC prior to denying records based on the personal privacy or preliminary drafts exemptions, even without the requesters initiating their own complaints.[39] Once this requirement became effective in 2010, pre-approval of FOIA denials eventually comprised a large portion of the PAC's workload.[94] Of the complaints received by the PAC in 2010, 63 percent were requests for pre-approval of a FOIA denial.[95] This requirement was repealed by the end of 2011 to ease the workload of the PAC and public bodies.[94]