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There is yet another potential attack on your FOIA rights - an attempt to roll back your rights to public documents. Ever since the FOIA was reformed to become a stronger and more enforceable law, the legislature has been eroding away your FOIA rights.
Last week Rep. Barbara Flynn Currie submitted Amendment #3 to SB 2799 to restrict your right to preliminary documents cited by the Chair of a governing body during an open meeting. In fact, they want to restrict your right to even FACTUAL information that is not considered deliberative. (More detail about the changes it makes to FOIA are below.)
The House Executive Committee will be voting on whether or not to add this amendment at 4 p.m. TODAY and need to hear from you IMMEDIATELY. Please call as many of the House Executive Committee Members as you can to URGE THEM TO VOTE NO on attaching Amendment #3 to SB 2799.
Amendment #3 is not related to the content of the bill. It is a FOIA amendment that severely limits transparency and public participation in the following ways:
MEDIA ADVISORY – Press Conference
Good Government Advocates Urge Illinois General Assembly to Forego Override of IL Freedom of Information Act Strong - Governor Quinn Vetoes Bill on Friday June 27th, the same day it reaches his desk.
What: Press conference convened by Citizen Advocacy Center of good government groups calling on the Illinois General Assembly to forego a veto of HB 3796 that amends the Illinois Freedom of Information Act (FOIA) and weakens FOIA’s intent to ensure necessary access to public records so that the public can effectively monitor government bodies to keep them accountable.
HB 3796 creates a new category within the FOIA that can designate a request “voluminous” based on how much information is requested within one FOIA request. The bill also implements a new fee structure that allows public bodies to charge as much as $100 for electronic data and allows public bodies to not respond to FOIA requests under certain circumstances. For more information regarding HB3796 visit www.CitizenAdvocacyCenter.org
Citizen Advocacy Center, Maryam Judar
Illinois PIRG, Abe Scarr
Better Government Association, Andy Shaw
Illinois Policy Institute, Brian Costin
Citizen Watchdog and Frequent FOIA Requester – Dr. Tamara Brenner
In addition to the organizations presenting, this effort is also endorsed by Chicago Headline Club, ACLU of Illinois, Illinois Campaign for Political Reform, Chicago Appleseed Fund for Justice, and Dick Simpson, UIC Political Science Professor and Former Chicago Alderman.
When: Monday, June 30th at 10:30 a.m.
Where: Illinois State Building (Thompson Center)
15th Floor, Blue Room
100 W. Randolph St.
Chicago, IL 60601
Go through security on first floor; then take elevator to 15th floor
# # #
Citizen Advocacy Center is a non-profit, non-partisan free community legal organization dedicated to building democracy for the 21st century by strengthening the citizenry's capacities, resources, and institutions for self-governance.
REASON #10: NO OPPORTUNITY WAS GIVEN FOR PUBLIC CONSUMPTION OR DEBATE. HB 3796 was introduced the Friday of Memorial Day Weekend, one week before the end of the session. While Illinoisans were honoring those who have defended democracy as members of our U.S. military, the General Assembly was limiting the public’s right to participate in the democratic process. HB 3796 affects individuals who monitor government, ad hoc citizen groups who organize to address issues of public concern, average citizens who want to learn more about government, and lawyers who represent individuals or community groups in addressing issues of public concern.
REASON #9: THE INTERNET ACCESS PROVISION CONTRADICTS THE FOIA PROVISION THAT ALLOWS REQUESTERS THE RIGHT TO INSPECT THE PHYSICAL COPY OF THE RECORD.* HB 3796 bypasses the requester’s right to inspect original records by allowing the public body to respond to FOIA by notifying “the requester that the public record is available online and direct[ing] the requester to the website where the record can be reasonably accessed.” **
REASON #8: 5 ILCS 140/3 (e)(vi) ALREADY ALLOWS GOVERNMENT ENTITIES MORE TIME TO RESPOND TO REQUESTS. Public bodies can invoke an additional 5 days if they need more time to respond so that compliance will not unduly burden or interfere with government operation.
REASON #7: 5 ILCS 140/3(g) ALREADY ALLOWS GOVERNMENT ENTITIES A MECHANISM TO MANAGE LARGE REQUESTS. The “unduly burdensome” provision allows public bodies to determine that the burden on the public body to produce requested information outweighs public interest in disclosure.
REASON #6: NO DOCUMENTATION HAS BEEN RELEASED TO THE PUBLIC TO ILLUSTRATE SYSTEMIC ABUSE. Public bodies have not documented the perceived problem this bill allegedly will solve. Further, FOIA is an “intent neutral” law; no requester has to tell the public body why a record is sought.
REASON #5: VOLUMINOUS REQUEST DESIGNATIONS WILL RESULT IN LESS MEANINGFUL PUBLIC ENGAGEMENT. To intelligently address issues of public concern, a routine FOIA request can easily exceed the proposed thresholds. A routine FOIA to address community development and economic issues would include all (1) minutes, (2) agendas, (3) all staff communications, (4) applications, (5) financial data, (6) contracts, (7) consultant reports, (8) comprehensive plan, and (9) attorney billing records for a particular time period.
REASON #4: HB 3796 CREATES THE “HAVES” AND “HAVE NOTS” OF PUBLIC ACCESS.
The fee scale for electronic data unfairly penalizes Illinoisans with lower incomes and who wish to civically engage, and it will create a class of citizens who have financial means to access them and a class that doesn’t.
REASON #3: HB 3796 COMPLICATES AND DETERS THE USE OF FOIA BY AVERAGE CITIZENS.
The provisions for voluminous requests, access to online documents, and electronic data cost provisions have unnecessarily complicated the FOIA so that a lawyer is necessary to untangle the red tape of the procedures for accessing information.
REASON #2: THE VOLUMINOUS REQUEST PROVISION WORKS IN CONJUNCTION WITH THE RECURRENT REQUESTER PROVISION TO SQUEEZE OUT THE PUBLIC. The recurrent requester provision limits how many FOIA requests can be made in a certain time frame. Voluminous request provisions limit how much can be requested at one time. A requester is potentially forced to choose: be labeled recurrent or voluminous! Either road, the end point is the same: less access to public records.
AND THE #1 REASON GOVERNOR QUINN SHOULD VETO HB 3796 is:
HB 3796 LIMITS HOW PUBLIC INFORMATION IS DISTRIBUTED WHILE PLACING NO RESPONSIBILITY ON PUBLIC BODIES TO MAKE MORE INFORMATION AVAILABLE.
Public bodies claim hardship without bearing any responsibility for making more public records available without requiring requests, which would benefit all parties.
* 5ILCS 3(a); DesPain v. City of Collinsville, 88N.E.2d 163 (2008).
** H.R. 3796 98th Gen. Assemb., Reg. Sess. (Ill. 2014).
I am writing today to alert you to a problematic bill, HB 3796, that was only introduced last Friday afternoon, passed the House on Memorial Day, and will pass the Senate TODAY to the Senate sponsors, who expect a unanimous vote. I am providing detailed information below. It is urgent that you CALL YOUR SENATOR IN SPRINGFIELD TODAY to tell them you oppose HB3796 as this bill severely curbs the ability of the public to monitor government activity. Need to know who your Senator is? Click here.
HB 3796 adds provisions to the Freedom of Information Act to create a category of requests called "Voluminous Requests." This is in addition to the other provisions in the FOIA that enable public bodies to negotiate FOIA requests, which are the recurrent requester provision and the unduly burdensome provision.
The voluminous request provisions:
It is important to note that the FOIA is "Intent-Neutral"--the reason that the requester wants public records is not a consideration that the public body should make in complying with the request. A document evidencing government business is presumed to be public-- or it may through clear and convincing evidence be withheld through an exception, or an exemption outside the FOIA statute may exist. These are the only considerations that a public body may take in responding to a FOIA request.
It should be noted that the unduly burdensome provision is a workable provision--it requires the public body to ask the requester to narrow the request to manageable proportions.
This bill is partly in reaction to those FOIA requesters who avoided the label of "recurrent requester" by putting their FOIA requests in one letter or email to the public body--an unintended consequence of the recurrent requester provision. If you remember, a recurrent requester submits 7 FOIA requests in 7 days, 15 FOIA requests in 30 days, or 50 FOIA requests in 365 days. At the very least, the recurrent requester provision should be removed from the FOIA, if the voluminous request provisions pass and get signed into law.
While non-profits, scientific, or academic organizations, and the media are exempt from the voluminous request provisions, this bill severely curbs the ability of the public to monitor government activity.
Executive Director/Community Lawyer
Citizen Advocacy Center
IT’S SUNSHINE WEEK! In addition to engaging in dialogue about the importance of open government and freedom of information, this is a time to get acquainted with government data sets! Government bodies are releasing millions of data sets that are available at our fingertips and easily searchable. For starters, check out data about your state, county, city, your ZIP code, your school district or even your specific school. Here is a list of websites to get you started.
GOVERNMENT DATA AT YOUR FINGERTIPS
Find federal datasets concerning specific municipalities. Search by topic, also.
Search and browse hundreds of city datasets. Search by category or topic.
Find federal datasets concerning specific counties. Search by topic, also.
Find birth, marriage, & death records; delinquent property tax search; Cook County ordinances; election results; polling locations; directory of elected officials; maps; lobbyist reports; TIF property searches, reports, and maps; and ethics filings.
Search for federal datasets concerning states. Search by topic, also.
Search and browse thousands of state datasets. Search by municipality, category, or topic.
Illinois Sex Offender Information
Illinois Department of Transportation
Find project information and maps
Illinois Report Card
Find facts about individual schools, including ISAT scores, PSAE scores, total enrollment, number of schools, number of teachers, student mobility, graduation rates, college readiness rates, instructional average spending per student, and average operational spending per student. Also, view indicators of academic progress, district environment, student characteristics. Compare your school to others.
Portal to search for federal datasets for cities, counties, and states.
Search for federal contracts by agency, department, vendor, or fiscal year.
U.S. Census Longitudinal Employer-Household Dynamics
View combined federal, state, and Census Bureau data on employers and employees. Statistics on employment, earnings, and job flows at detailed levels of geography and industry and for different demographic groups.
Toxics Release Inventory Program
Enter an address for maps locating toxic chemicals in your community.
Access reports and downloadable files tracking the management of more than 650 toxic chemicals used at U.S. industrial facilities.
Information on millions of companies worldwide. Search by name, filter by jurisdiction.
Offshore Leaks Database
Search for offshore companies and trusts, by country.
Search through 450 online databases across 120 countries for information on shareholders, directors, and financial reports of companies worldwide.
Thanks to reporter Jeff Lowenstein for compiling this list and for his fantastic presentation at the Chicago Headline Club sponsored FOIA Fest 2014 hosted at Loyola University to kickoff Sunshine Week.
CAC offers to assist Plainfield Township Park District Board improve transparency and accountability
Maryam Judar, CAC Executive Director offer the following public comment at last night's meeting:
Good evening Plainfield Township Park District Board Members. My name is Maryam Judar and I am the Executive Director and a community lawyer at Citizen Advocacy Center. CAC is a non-profit, non-partisan, community-based legal organization with a mission to build democracy in the 21st century. Among the many projects CAC is involved with, our community lawyers assist people in Illinois with navigating the local government decision making system so that they may affect policy decisions on issues that matter to them most. We also work with government bodies to develop policies and procedures that increase government accountability, transparency, and accessibility to the people they serve.
I am before you today to address the characterization of members of your community on the Plainfield Township Park District government website. Currently, a November 4, 2013 entry is posted referencing Requests for Reviews to the Public Access Counselor's office filed by members of the community. The description of the community members on the website who filed the reviews is a “small group of radicals” who use the PAC review process to “possibly harass the Plainfield Park District Board for its decisions.”
The entry goes on to state that “[i]t is our opinion at the Park District that these complaints were frivolous and a financial distraction from our mission.”
With respect to the public use of going to the PAC, it is important to understand that the PAC serves as an ombudsman between government and its citizens on open government matters. The Public Access Counselor’s office is dedicated to vetting FOIA and OMA issues when the answers are not obvious. Both government entities AND members of the public contact the PAC for answers about FOIA and OMA questions.
The Plainfield Township Park District website characterized the citizens’ use of going to the PAC as “frivolous” and
“potential harassment.” Such characterization of concerned citizens using a legal process to clarify questions about government functioning, especially when the FOIA and OMA legal analyses start with a presumption of disclosure and openness unless there is a valid exemption, is a misunderstanding of the purpose of the PAC and that the
Park District’s response to such inquiries is part of the cost of public business, as well as a misunderstanding of the role of a citizen in a democracy.
With respect to how concerned citizens are characterized on the website, using negative connotations appears to be intended to serve as a chilling effect on members of the public who disagree with government decisions
and how those opinions are expressed. Is it a policy of this Board to belittle the public so as to discourage public participation, the questioning of how government functions, and the use of a resource that is specifically in place to
answer questions of public concern? How does this meet the mission of the Park District?
If you do agree that it is not the policy of the Board to belittle public engagement, we request that such offensive language be removed from the website immediately so that the ostensible values of the public body with respect to citizen engagement – regardless of whether you agree with the viewpoints expressed – is reflected on the website.
If you do not agree, and find that such characterizations on the Park District website adequately reflect the values of the Park Board with respect to citizen engagement, may I suggest that the Citizen Advocacy Center might be of assistance to you in rethinking how to approach citizen participation. CAC has worked with public bodies to help them achieve a higher level of government transparency and accountability, and most recently with Wheaton Park District – at their request. We would be willing to help the Plainfield Township Park District assess their processes and procedures for engaging the public and in streamlining how it provides information to the public so as to lessen its cost relative to FOIA – free of charge to the park district.
Clearly there is a disconnect in how the Board is relating to the public it serves. I suggest that this disconnect does not originate with concerned citizens, but rather it originates in the dysfunctional manner in how the Board interacts with concerned citizens that is causing - as it states on the Park District’s website - “the financial expense to the taxpayers that could have been spent expanding programs for children, veterans, and seniors here in our community.”
For more about the November 13th meeting, check out the following articles:
Plainfield Patch: Peck Calls Citizens ‘Radicals;’ Resident Ejected from Park Board Meeting
The Herald News/Chicago Sun Times: Resident booted from Plainfield meeting
Join us for an informative and educational evening! Details below:
**This blog post was written by a non-legal intern and should not serve as legal advice. If one is seeking legal advice they should consult a practicing attorney**
Out of State, Out of Mind
Recently, the US Supreme Court unanimously ruled that non-residents of Virginia are not allowed to take advantage of the commonwealth’s Freedom of Information Act. The decision states that it is not unconstitutional for Virginia to restrict access to government documents to non-residents.
The case started when McBurney and Hurlbert, along with media and data companies, challenged Virginia’s FOIA law under the U.S. Constitution’s Privileges and Immunities Clause which prohibits states from discriminating against citizens out of the state. Hulbert, owner of a real estate company, argued the law restricted him from giving proper information about public real estate assessments to his clients. McBurney, a former Virginian, could not get access to welfare papers for child support that he needed when divorcing his wife.
These two men argued that it is unconstitutional to withhold access to public records especially considering the growing commerce potential. But the Supreme Court disagreed. "We hold, however, that petitioners' constitutional rights were not violated," Justice Samuel Alito said for the court. "By means other than the state FOIA, Virginia made available to petitioners most of the information they sought, and the Commonwealth's refusal to furnish the additional information did not abridge any constitutionally protected privilege or immunity. Nor did Virginia violate the dormant Commerce Clause."
The ruling especially causes problems for all data miners who no longer directly get information from Virginia. This can include all type of American citizens including business owners who need information about other out-of-state businesses, media outlets, citizens in need of police records, and even just a curious citizen looking for answers.
The ruling has proven to be troubling on many levels. First off, the Supreme Court stated that there was no discrimination with regard to the Privileges and Immunities Clause. They quoted, “[W]e reject petitioners' sweeping claim that the challenged provision of the Virginia FOIA violates the Privileges and Immunities Clause because it denies them the right to access public information on equal terms with citizens of the Commonwealth. We cannot agree that the Privileges and Immunities Clause covers this broad right.”
The Supreme Court has read the Privileges and Immunities Clause in a very narrow manner. In the past the Supreme Court has ruled the Clause as a way to “keep the citizens of each state on equal footing with citizens of other states” (Paul v. Virginia (1869)). Why does it now make sense to limit information when the Clause was in the Constitution for all U.S. citizens?
After the ruling, the fear is other states may follow in lead in this lack of transparency. Of the 48 states that have FOIA laws, Tennessee, Alabama, Arkansas, Missouri, New Hampshire and New Jersey already have laws restricting some access, and it won’t take long before other states begin wanting to also adopt the policy.
Next, the Supreme Court has underestimated the importance of having access to out-of-state records. The ruling means that journalists or “watchdogs” from other states involved in investigative reporting can no longer access information in cases of alleged misconduct or corruption. And who really wants to go to an online blogger asking if they can get information for you from their state because you can’t get it yourself? The Freedom of Information Laws were adopted to make sure the government stays a transparent entity; thus, all affected by the government should have the right to access its information.
Finally, I do not agree the Supreme Court has justification to limit information for citizens out-of-state. I mean, who is this really helping anyways? People out-of-state can still ask someone in-state to get the information for them while the government will slowly seem less accountable due to lack of transparency. Overall, I think the Supreme Court should have upheld the principles of government transparency and ruled against withholding government information.
2013 High School Summer Intern
Chemerinsky, Erwin. "Chemerinsky: Court Unanimously Wrong on Virginia’s Public Records
Law." Chemerinsky: Court Unanimously Wrong on Virginia's Public Records Law. ABA Journal, 5 June 2013. Web. 17 July 2013.
Holland, Jesse J. "Supreme Court: State Can Block Out Of State Use Of FOIA." Western Journalism. Western Journalism, 29 Apr. 2013. Web. 17 July 2013.
"Virginia Can Block out of State Use of FOIA, Supreme Court Rules." WJLA. WJLA, 29 Apr. 2013.
Web. 17 July 2013.