By Jackie Spinner, CJR
This article first ran on August 16, 2016 on the Columbia Journalism Review's website.
This summer, the Illinois Legislature stiffened the penalties that can be imposed on public bodies that refuse to comply with the state’s Freedom of Information Act. HB 4715, part of a two-bill package known as “Molly’s Law,” allows courts to fine agencies up to $1,000 for every day that they delay in turning over documents after a court ruling. The penalty would be in addition to existing fines, which range from $2,500 to $5,000.
The law, passed in response to a family’s fight for documents related to their daughter’s death, was touted by politicians as strengthening the state’s FOIA laws. Certainly stiffer penalties would seem to do that by sending the message to public bodies that not complying with FOIA could be costly. And the new law also establishes a presumption that a public body is wilfully violating the law if it ignores a binding opinion from the state’s attorney general to release documents.
But in conversations with a handful of journalists and advocates who follow FOIA law closely, I heard mostly skepticism that the new law, which goes into effect next January, will do much. The responses highlighted a general frustration with how easily public bodies in Illinois can—and do—ignore requests for public documents, not just from journalists but also from citizens.
Perhaps the biggest question about the new law was summed up by Tom English, interim editor at the Southern Illinoisan, who asked: “Will anyone end up having to pay?” Under existing law, which already allows for civil penalties when public bodies “willfully and intentionally” violate the state FOIA, fines are rare. The state attorney general’s office, which issues FOIA opinions, mediates disputes, and trains the state’s public FOIA officers, does not keep records on when state courts fine public agencies, said spokeswoman Annie Thompson. But it doesn’t happen often. (In one such instance in 2012, an Illinois Appellate Court imposed a $2,500 penalty, the minimum, on the Rockford Public School District for violating the law when it denied a request from the Rock River Timesnewspaper for a letter related to a principal’s employment.)
“The civil provision has been wholly ineffective at improving FOIA compliance,” says Matt Topic, a Chicago lawyer who has represented journalists with their FOIA court battles, including the one that forced the Chicago police to release the Laquan McDonald shooting video last year. “The new penalties are a step in the right direction, but I doubt things will improve substantially without significantly stronger penalties.”
When the new legislation was first introduced, it called for a doubling of the baseline penalty for failure to produce documents, up to a maximum of $10,000, even before the $1,000-per-day fine. But the Illinois Senate struck that part of the proposal. A spokesman for Rep. Terri Bryant, the Southern Illinois lawmaker who introduced the bill, said legislators felt that such a penalty would be too harsh while the state is grappling with a budget crisis—though of course, making the fine hit harder would have been the point of raising it in the first place.
Several of the reporters I talked to, however, were uncomfortable with the basic approach of fining government agencies for noncompliance—because it is taxpayers footing the bill for an official’s refusal to disclose documents that the taxpayers are supposed to have a right to see in the first place.
“Fining them is stupid,” said Jake Griffin, assistant managing editor for watchdog reporting at the Daily Herald in suburban Chicago. He recalled a case in which the attorney general ordered a local police department to release squad-car footage sought by the paper. If the department had refused to do so and the Herald sought penalties under the law, “taxpayers would have to pay for it,” he said.
Beth Hundsdorfer, a reporter at the Belleville News-Democrat in Southern Illinois also recalled a wait for documents—nearly a year, after the attorney general ordered the Illinois Workers’ Compensation Commission to turn over nerve conduction velocity tests from guards at a correctional center.
The paper eventually went to court, at its expense, to fight for the records. “The state hired a Chicago firm to defend their stance,” Hundsdorfer said. “So we, as in taxpayers, were paying for that, too.” In the end, the paper won and got the records.
“If this new law offers a disincentive to stall, I think it’s probably a good thing,” she said. “But there are a lot of small, poor municipalities, that simply ignore FOIA requests. I don’t know how I would feel about socking a village that doesn’t have money to fill potholes in the street with a fine for not answering a FOIA. And, as a journalist, what happens to the money? It’s taxpayer money. I don’t want it. So, it’s interesting and definitely an incentive for open records release, but, as with all things, the devil is in the details.”
In the cases mentioned above, the Daily Herald and the News-Democratreceived binding opinions from the attorney general’s Public Access Bureau, meaning the public agencies were required to comply. That forum is designed to provide a less costly alternative than the court system to settling disputes. In 2015, the bureau received more than 4,700 requests for assistance with records requests from members of the public and the media; it released more than 1,200 binding and non-binding determinations. (The majority are non-binding).
One provision in the new law sets out guidelines for how public agencies can be penalized for failing to abide by an attorney general’s binding opinion. If the agency does not comply with or appeal the decision within 35 days, there is now a “rebuttable presumption” of a willful violation, triggering a potential penalty.
But even in that case, a records requester has to file an action in court—and the amount of the fine ultimately depends in part on the discretion of a judge.
“This is the point and the rub,” said Maryam Judar, executive director of the Citizen Advocacy Center, a nonprofit group focused on government accountability. “There always has to be a lawsuit.”