The Illinois Freedom of Information Act ("FOIA") grants Illinois citizens access to all public records. But does it grant the same right to those who live outside Illinois?
That's a question for Illinois public bodies after the U.S. Supreme Court recently upheld the constitutionality of a provision in Virginia's Freedom of Information Act that limits that state's sunshine law to the inspection and copying of records by "citizens of the Commonwealth."
Petitioners Mark J. McBurney and Roger W. Hurlbert, citizens of Rhode Island and California, respectively, had filed suit in federal court challenging the Virginia law after being denied access to various public records because of their citizenship.
In McBurney v. Young, decided April 29, 2013, the U.S. Supreme Court unanimously held that the Virginia FOIA's express limitation to her own citizens neither violated the Privileges and Immunities Clause nor the dormant Commerce Clause. The Privileges and Immunities Clause protects only those privileges and immunities that are "fundamental," the Court said, declining to find any such right to sunshine laws in the Constitution or the early common law. In addition, the Court noted, the majority of state records in Virginia were available to non-residents through other means. As for the dormant Commerce Clause, the Court said that Virginia's FOIA neither prohibits access to an interstate market nor imposes burdensome regulation on that market.
In short, the Court said, Virginia FOIA does not extend to non-Virginians.
At least eight other states had similar limiting language in their state sunshine acts at the time of the McBurney ruling - Alabama, Arkansas, Delaware, Missouri, New Hampshire, New Jersey and Tennessee. Those states apparently would now be free to deny requests from out-of-staters.
The issue for Illinois, of course, is whether the Supreme Court's holding in McBurney might apply to the Illinois FOIA as well. Unlike Virginia and those other states, the Illinois FOIA does not explicitly state that access to public records shall be available only to her own citizens.
Section 1 of the Illinois FOIA states: "Pursuant to the fundamental philosophy of the American constitutional form of government, it is declared to be the public policy of the State of Illinois that 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 and public employees consistent with the terms of this Act." (emphasis added).
The inclusion of the words "those who represent them" appears to indicate that FOIA's purpose could be interpreted to mean that the right to such access extends only to Illinois citizens.
Section 1 goes on to state that "Restraints on access to information, to the extent permitted by this Act, are limited exceptions to the principle that the people of this State have a right to full disclosure of information relating to the decisions, policies, procedures, rules, standards and other aspects of government activity..." (emphasis added).
In McBurney, the Supreme Court found it significant that the Virginia FOIA distinction was enacted for similar democratic purposes - rather than for protectionist aims. "The state FOIA essentially represents a mechanism by which those who ultimately hold sovereign power (i.e., the citizens of the Commonwealth) may obtain an accounting from the public officials to whom they delegate the exercise of that power. In addition, the provision limiting the use of the state FOIA to Virginia citizens recognizes that Virginia taxpayers foot the bill for the fixed costs underlying record keeping in the Commonwealth."
So construed, one could argue persuasively that the language in the Illinois FOIA is meant to limit its reach to Illinois citizens alone.
The significance of McBurney may not be great in the long run. Out-of-staters presumably will be able to get much of the information requested from public body websites, or by simply getting a state citizen to make the request for them. But for Illinois public bodies and municipalities, which bear the cost of FOIA requests, the McBurney holding could cause them to reconsider their current policies regarding out-of-state requests. Until the Illinois courts interpret the Illinois FOIA language, however, such public bodies would be well-served to exercise caution in denying requests for public records based only on the citizenship of the requester.
For a copy of the Supreme Court's Opinion, click here McBurney_v_Young.pdf (130 KB)