The
Freedom of Information Act
A Survey of Electronic Access in Illinois
Both the Federal Government and the State of Illinois have enacted a Freedom of Information Act (FOIA). Pursuant to these acts, any person or group has a legally enforceable right to request access to certain government records.
In 1996, the Federal Government amended the Federal FOIA to accommodate the public’s increasing access to and reliance on electronic means of communication. This amendment gave rise to online access to public documents, as well as to many of the Federal Agencies accepting FOIA requests via e-mail or via electronic request forms on agency websites. The result has been increased access to and ease of attaining public documents from Federal Agencies.
The Illinois General Assembly enacted the Illinois FOIA in 1984, but has not subsequently amended the Act to accommodate increased access to and reliance on electronic means of communication. The Illinois FOIA is lagging behind technical advances and, as a result, Illinois citizens are limited in their ability and means to access public records. Simple, yet significant changes in Illinois law would increase a person’s ability to access public documents without increasing the cost to public bodies and, in the long run, save money.
The Federal FOIA was enacted in 1966 making it the first statutory provision to address a person’s right to access governmental information.[1] The Federal FOIA requires government agencies to make certain information available to the public.[2] The statute enables the enforcement of the right of a person to obtain records from agencies for any public or private purpose.[3] FOIA is essential to our governmental society as its purpose is to ensure an informed citizenry as a check against corruption, and to hold governmental officials accountable to their constituents.[4]
The Federal FOIA, 5 U.S.C 552, requires four general areas of disclosure. Each agency must:
1. State and publish in the Federal Registry:
· A description of the organization and how the public may obtain information from the agency;
· The general course and method of the agency’s organization;
· The rules, procedures, form description and location, and scope of all papers, reports or examinations;
· The substantive rules and general policies; and
· Any amendments or repeals of the above.
2. Make available for public inspection and copying:
· Final opinions and orders from adjudications;
· Policies and interpretations adopted by agency that are not in the Federal Registry;
· Staff manuals and instructions;
· Copies of all requested records that are likely to be subsequently requested; and,
· A general index of the frequently requested records.
3. Make other public records (not included in the above) available upon request.
4. Maintain and make available for public inspection a record of the final votes of each member at the agency.
In 1996, the Federal Government amended the FOIA pursuant to the “Electronic Freedom of Information Act Amendments of 1996.” In his statements issued at the signing of these amendments, President Clinton stated that the 1996 Amendments “bring FOIA into the information and electronic age by clarifying that it applies to records maintained in electronic format.”[5]
The amendments increased public access to governmental information by mandating the placement of material online and expanding the role of the agency reading room.[6] The Electronic FOIA makes it possible for an individual to access documents in electronic reading rooms set up by Federal Agencies without making a formal request.[7] Electronic reading rooms are pages on agency websites where documents required to be available for public inspection and copying can be reviewed without a formal FOIA request.[8] Additionally, agencies place frequently requested documents in these electronic reading rooms to avoid time wasted on complying with multiple requests for the same documents.[9] President Clinton stated that he hoped the need for using FOIA would decrease as government agencies increased the information they disseminated via electronic means.[10]
A number of changes were made in the 1996 amendments resulting in broader electronic access to governmental records:
1.
Federal Agencies are required to make records mandated
to be available for public inspection and copying (under 5 U.S.C. §552(a)(2))
and created on or after November 1, 1996 available within one year by computer
telecommunications, if available, or by other electronic means.[11]
2.
Each agency is required to compile a general index of
records that are likely to become the subject of frequent subsequent requests
available by computer telecommunications by December 31, 1999.[12]
3.
When responding to requests, the agency must provide
the record in any form requested if that format is readily available to that
agency and must attempt to search for the records in electronic format unless
that would interfere with the agency’s automatic information system.[13]
4.
Each Agency is required to publish a yearly request
report and make it available to the public including by computer
telecommunications, or if not available, by other electronic means.[14]
Further, though not mandatory, some agencies have made accommodations for people to request documents over the internet either via e-mail (Department of Commerce)[15], or with an electronic form (Department of Defense and The Department of Housing and Urban Development).[16] The effect of all these changes is that records are more readily available to the public for inspection and copying.
The Illinois FOIA was enacted in 1984 and effectively unified and codified the common law, the Illinois Constitution of 1970 and previously enacted statutes which guaranteed to public’s right to inspect and copy public records.[17] The fundamental policy of the Act is that “Pursuant to the fundamental philosophy of the American Constitutional Form of government, . . . all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials . . . .”[18]
The Illinois FOIA is modeled, in part, after the Federal FOIA and provides the following:
1. A description of public bodies that are subject to the act,
2. A description of the records that must be disclosed, and a list of records that may be withheld from disclosure,
3. The procedures for making records available and the process through which a person can access the records, and
4. The administrative and judicial review of any decision to withhold records from inspection and copying.
The Illinois legislature has not, however, amended the Illinois FOIA to accommodate the increased reliance on and access to electronic communications.
The Citizen Advocacy Center surveyed thirty-seven (37) municipalities in DuPage County and one hundred thirty-three (133) municipalities in Cook County to learn how these public bodies use electronic means to allow the public access to records. In determining the extent to which each municipality provided information about the Illinois FOIA through websites the Center focused on four basic questions:
1. Does the public body have a website?
2. Is the Illinois FOIA mentioned or referred to on that website?
3. Is there substantive information about the Illinois FOIA on that website?
4. Is a request for documents available on the website, either by means of a downloadable document or an online request form?
The Center’s
research began with the lists of municipalities found on the DuPage County and
Cook County websites. Cook County lists one hundred thirty three (133)
municipalities within its county limits and DuPage County lists thirty-seven
(37) municipalities within its county limits. Each of the lists had links
to the municipality websites. In the event that the links did not work,
the Center conducted an Internet search on the municipality to find a
municipality website.
On
the municipality and county websites we first checked a government subsection
heading specifically looking for information about the clerk or for a page with
forms or applications. On websites with a search option, we searched for
the terms “Freedom of Information,” “Records Request,” or “Forms” to
try and locate information about the Illinois Freedom of Information Act.
If our data lists a municipal or county website as not having information
about FOIA in error, it is because any FOIA information provided is not readily
identifiable on the website, and a reasonably diligent search did not result in
finding any FOIA information.
Findings (See Appendices
A and B)…
Though the law
does not require a public body to have a website, the Center found that a majority
of the municipalities in both DuPage County and Cook County maintain websites.
In DuPage County all but two (2) (Wayne and Darien……) or 94.6% of the
thirty-seven (37) municipalities maintain websites. In Cook County, ninety-seven (97) or 72.9% of
the one hundred thirty-three (133) municipalities maintain websites.
Of the
thirty-five (35) municipalities in DuPage County that have websites,
twenty-eight (28) or 80% of those websites do not mention FOIA or refer to FOIA
only by name. Of the ninety-seven (97)
municipalities in Cook County that have websites, eighty (80) or 82.5% do not
mention FOIA or refer to it by name only.
Visitors to these websites will find no substantive or instructive
information about the Act on these websites.
Of the thirty-five
(35) DuPage County municipalities with websites, four (4) or 11.4% of those
websites have only minimal information about FOIA. Of the municipalities
in Cook County with websites, thirteen (13) or 13.4% of them have only minimal
information about FOIA. Websites classified as having only minimal
information have one paragraph or less explaining the FOIA and/or giving basic
instructions on how to request public documents pursuant to the Act.
Of the
thirty-five (35) municipalities in DuPage County with websites, three (3) or
8.6% of those websites provide substantive information about FOIA including the
Act’s intent and purpose. Of the ninety-seven (97) municipalities in Cook
County with websites, four (4) or 4.1% of those websites provide substantive
information about FOIA.
Of the
thirty-five (35) municipalities in DuPage County with websites, twenty-one (21)
or 60% of those websites offer downloadable request forms. Of the
ninety-seven (97) municipalities in Cook County with websites, thirty-five (35)
or 36.1% of those websites offer downloadable request forms. When looking
at the previous two statistics, it becomes clear that although many public
bodies provide a downloadable request form on their websites, they fail provide
even minimal information about FOIA or how to use it.
Finally, of the
thirty-five (35) municipalities in DuPage County with websites, three (3) or
8.6% of those websites have online request forms (Addison, Lisle,
Schaumburg). Of the ninety-seven (97)
municipalities in Cook County with websites, only one (1) municipality (1%)
provided an online request form. (Schaumburg)
The Center also surveyed the DuPage and Cook County websites and discovered that neither county website, despite being the two largest counties in the state, offer substantive or minimal information about FOIA, nor do they have downloadable or online request forms.
RECCOMMENDATIONS
This study clearly shows that websites have become a commonplace communication tool for municipalities with nearly 80% of the public bodies surveyed maintaining websites, however, only about 5% of the public bodies with websites provide substantive information regarding the FOIA on their websites. The prevalence of websites maintained by public bodies surveyed indicates how much the public relies on the Internet for information and communication. The Illinois FOIA should be amended to accommodate electronic means of communications thereby increasing accessibility, transparency and accountability of public officials. Additionally, such amendments will result in better access to public documents, and over time, less usage of employee time to compile FOIA requests.
Each public body (state agency, county and municipality) should be required to:
1. Maintain a website.
2. Maintain a page on that website dedicated to the Illinois FOIA. This page should include:
· General information about the Illinois FOIA including its purpose and intent;
· A timeline for public body compliance to a request;
· Instructions for making a request for public records including a request form that can be downloaded;
· Information about the right to appeal a denial of a request and instructions on how to appeal a denial; and,
· An electronic reading room where documents are available for public inspection and copying pursuant to the Illinois FOIA are posted. Additionally, frequently requested documents should be posted.
This FOIA webpage should be clearly linked to the home page of the public body’s website to assure easy access to the public.
3. Establish the means to receive and to comply with requests for public documents via e-mail or online request forms.
4. Make documents required to be available for public inspection and copying available by computer telecommunications.
5. Compile a general index of records likely to become the subject of frequent subsequent requests and post it on the FOIA webpage.
6. Publish a yearly request and compliance report and make it available to the public in print form and online.
CONCLUSION
The 1996 amendments to the Federal FOIA have increased the accessibility of government documents to the public. Public bodies rely heavily on electronic means of communication as a means to provide information to the public, but state law has lagged behind this advanced technology. The time has long since passed for Illinois to pass amendments to the Illinois FOIA that embrace the public’s increased reliance on and access to electronic means of communication. In the American spirit of the government being in the hands of the people, these amendments are an immediate and necessary need to maintain a healthy democracy in Illinois.
The Citizen Advocacy Center, a non-partisan, 501(c)(3), not-for-profit organization is dedicated to building democracy for the 21st Century by strengthening the public’s capacities, resources, and institutions for self-government. If you are interested in more information, becoming a volunteer, or making a tax-deductible contribution to the Center, please feel free to contact us at:
238 N. York Road, Elmhurst, IL 60126
(630)833-4080; Fax: (630)833-4083
E-Mail: cac@citizenadvocacycenter.org
Website: www.citizenadvocacycenter.org
©Copyright 2004 Citizen Advocacy Center. All rights reserved. No part of this pamphlet may be reproduced in any form or by any means without the prior, written permission of the Citizen Advocacy Center.
[1] “Purpose
of the FOIA” available at http://www.info.usda.gov/nrcs_foia/gm/408_40.htm
(last visited May 25, 2004) [hereinafter “Purpose”].
[2] “What is the Purpose of FOIA?” available at http://www.navicp.navy.mil/foia/purpose.htm (last visited May 25, 2004).
[3] Id.
[4] “Purpose” supra note 1.
[5]
“President Clinton’s Statements upon signing the 1996 FOIA Amendments, Oct. 2,
1996” available at http://www.usdoj.gov/oip/foia_updates/Vol_XVII_4/page2.htm
(last visited May 25, 2004). [hereinafter “Pres. Clinton’s Statements”]
[6] Id.
[7] “Pres.
Clinton’s Statements” supra note
5.
[8] “What you will find in the FOIA Reading Rooms” at http://www.usdoj.gov/04foia/04_2_1.html (last visited June 1, 2004).
[9] “Pres. Clinton’s Statements” supra note 5.
[10] Id.
[11] The Freedom of Info. Act 5 U.S.C. §552(a)(2)(D) (2002).
[12] Id.
[13] 5 U.S.C. §552(a)(3)(B),(C).
[14] 5 U.S.C. §552(e)(2).
[15] See, e.g., The Department of Commerce FOIA Electronic Request Form, at http://www.osec.doc.gov/omo/FOIA/FOIAWEBSITE.htm (last visited May 24, 2004).
[16] See, e.g., The Department of Defense FOIA Electronic Request Form, at http://www.defenselink.mil/pubs/foi/foiarequest.html, (last visited May 24, 2004); see also The Department of Housing and Urban Development Electronic Request Form, at http://www.hud.gov/offices/ogc/foia/foia.cfm (last visited May 24, 2004).
[17] A Guide to the Illinois Freedom of Information Act 5 (Allied Printing Trades Council 1999).
[18] The Ill. Freedom of Information Act
5 ILCS 140/1.
** Thank you to CAC volunteer, Heather Eagan who conducted the majority of the online research. Heather graduated from York High School in June of 2004 and will be attending college in New Orleans in the fall of 2004.
… 11 municipalities are located in both DuPage County and Cook County. The data collected from these municipalities is included in the statistics for both counties.
…… Darien has a web address, but it was not functioning at the time of the survey.