New FOIA Brings New Challenges to Public Bodies

FOIA Officer, shorter response time among key changes 

 

December 21, 2009

  

For Illinois towns and villages, January 1, 2010 marks more than the start of a new year (or decade, depending on how you view it).  It also marks the start of a new era for the Freedom of Information Act.

The new Illinois FOIA law brings a raft of changes designed to open up government and make information more accessible to the public. But along with that added transparency come increased responsibilities and costs to local governments and public bodies.

Here is a brief summary of some of the key changes to the new FOIA law:

•·        FOIA OFFICER: All public bodies must designate one or more officials or employees to act as its FOIA officer or officers. The officer(s) will have responsibility for receiving FOIA requests from the public and submitting responses in compliance with FOIA. The officer(s) must complete an electronic FOIA training curriculum by July 1, 2010, and thereafter on an annual basis.

•·        SHORTENED TIME FRAME: The new law shortens the time span allowed for public bodies to respond to requests from seven (7) business days to five (5) business days. If the public body requires an extension, the total time period allowed is reduced from fourteen (14) days to ten (10) days. However, this deadline does not apply to FOIA requests made strictly for commercial purposes (see below). Also, the new Act allows for the public entity and the requesting party to agree IN WRITING to extend the time for compliance by mutual agreement.

•·        NARROWER EXEMPTIONS: The new Act eliminates "per se" privacy exemptions, and narrows the range of exemptions cited in Section 7 of the old FOIA law. As before, it requires a "clearly unwarranted invasion of privacy" before any information can be withheld. But the definition of "unwarranted" has been broadened. Meanwhile, the Act narrows the definition of "private information" to unique identifiers such as Social Security Number, Drivers License Number, personal medical and financial information and personal phone numbers.

•·        LIMITED COPY FEES:  The Act requires that public bodies provide the first 50 pages free of charge (black and white, legal or letter sized). The remaining charges are capped at 15 cents per page. For color copies and various other formats/sizes, the public body may charge whatever fee is necessary to recover its actual costs.

•·        NO MORE LOCAL APPEALS: The new Act creates a Public Access Coordinator position in the Office of Attorney General with the authority to review all FOIA requests. Any person who believes that a public body has violated the Act may request a review by the PAC. The PAC's decision is "binding" and reviewable under Illinois' Administrative Review Law (735 ILCS 5/3-101 et seq.).

•·        SEPARATE TRACK FOR COMMERCIAL REQUESTS: For those FOIA requests made for commercial purposes, the Act lengthens the deadline for an initial response to 21 days. It then requires public bodies to respond to the request within a "reasonable period considering the size and complexity of the request." The Act allows the public body to inquire about the general purpose of the request in order to determine whether it is commercial in nature.

•·        ADDED DISCLOSURE: If the public body maintains a website, it must post the name/address of the FOIA officer(s) along with a description of the public body and the methods by which the public can gain information and public records. In addition, the FOIA officer must develop a reasonably current list of documents or categories of records that the public body shall immediately disclose upon request (such as past meeting agendas).

•·        FEWER RESTRICTIONS: No longer can a public body deny FOIA requests made by e-mail, or require standard forms for FOIA requests. However, the Act does allow public bodies to require FOIA requests be made in writing. A public body always remains free to honor an oral request if it so chooses.

•·        STRICTER PENALTIES: While the old FOIA law contained no express provision for violations, the new Act allows courts to impose civil penalties between $2,500 and $5,000 against public bodies that "willfully and intentionally" fail to comply with the law or otherwise act in bad faith. In addition, the Act provides that when a requester prevails in a lawsuit to obtain access to a record, the court shall award reasonable attorneys' fees and costs.

Of all the above changes, the last one might be the most important for local governments and public bodies. The threat of substantial fines and/or court costs must be taken seriously in these days of limited funds. Public officials and administrators should be vigilant in making sure that these new FOIA requirements are met by January 1, 2010.

But while these new FOIA requirements present some added challenges, there are steps a FOIA officer can take to help make for a smoother transition. Here are a few tips for helping FOIA officers comply with the new FOIA guidelines:

•1)      Don't wait until the last minute: With a shorter five-day limit by which to respond, time is of the essence. Make it a policy to respond with a brief letter (or e-mail) as soon as possible, but not more than a day later, with an acknowledgment of the receipt of the request and confirmation that the request is being considered. Also, consult with your counsel if necessary and begin the process of pulling the relevant records. Do not sit on the request while you or others prepare a response or extension request. You can always follow up with a second letter containing this information or request before the five-day deadline.

•2)      Put everything in writing: Avoid the temptation to discuss the request with the requesting party over the phone. This is especially true when discussing any extensions of time that might be agreed upon by the requesting party. Without a written record, your public body might not have grounds to defend itself in the event the requesting party charges a violation of the Act.

•3)      Create a spreadsheet: The FOIA officer is required under the Act to keep certain records related to all requests, including the date it is received, the deadline for response, and a file of written communications between the parties. As such, it might help to keep an Excel or similar type spreadsheet containing the same basic information along with any brief notes/descriptions of the status and resolution of the request. Keep in mind that many requests come from the same sources and seek information previously provided. A spreadsheet with a quick history of past requests can save time and expense by providing a quick reference point.  

The changes to the FOIA law are numerous and significant. Public bodies, especially villages and towns, need to pay attention to the changes and react accordingly. We hope this summary helps, but please keep in mind that this document is for information purposes only and is not legal advice. If you have any questions about the new FOIA, feel free to contact Mary Patricia Burns at (312) 541-8600 or through our website.

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