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 The Illinois Freedom of Information Act, or FOIA, is supposed
to give every citizen the right to obtain public records so they can better
understand what their government is doing. Too often, however, public bodies in
Illinois violate the letter and spirit of the law by resisting citizens’
requests for public records any way they can.
Fortunately, the Illinois Supreme Court issued an opinion on May 24 that will
help protect the public’s ability to obtain public records under FOIA.
The Supreme Court’s opinion involved two cases with similar facts. In both cases
the plaintiffs, Christopher J. Perry and the Institute for Justice, requested
information under FOIA from the Illinois Department of Financial and
Professional Regulation, which refused these requests even though the
information sought was not exempt from FOIA at the time.
The parties filed lawsuits challenging the department’s denial of their
requests. But while those lawsuits were still in court, the Illinois General
Assembly passed and then-Gov. Pat Quinn signed a bill that prohibited the state
from disclosing the exact information these plaintiffs had requested. Although
the bill did not purport to apply retroactively to the time when the plaintiffs
made their requests, the department argued that this information was exempt
under these new laws. The Supreme Court found that these laws were not
retroactive and that they did not exempt the information sought by the
plaintiffs.
The decision is significant because of its potential effects on government
transparency. Because of those implications, the Liberty Justice Center filed a
“friend of the court” brief on behalf of the Illinois Policy Institute and Edgar
County Watchdogs supporting the plaintiffs and informing the court of the
potential consequences to citizens seeking access to government records under
FOIA.
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As the Institute and the Edgar County Watchdogs explained in their
brief, FOIA gives every citizen the right to access government
records, subject to certain limited exemptions, with a presumption
in favor of transparency. But the reality is that those seeking
government records via FOIA must overcome multiple hurdles in order
to obtain them. For example, all too often, government agencies
simply deny FOIA requests unless and until a citizen sues and forces
them to comply with the law.
This ruling establishes that new laws prohibiting public records
from disclosure don’t automatically apply to FOIA requests citizens
have already made. If the court had ruled otherwise, that would have
had at least three negative consequences for government
transparency.
First, given the time and expense, citizens would become even more
reluctant to file lawsuits to vindicate their right to public
records under FOIA if they could be denied access to public records
because the law was amended to exclude such records after they filed
the lawsuit.
Second, an unfavorable decision could have given public bodies an
incentive to lobby the legislature to enact new FOIA exemptions when
citizens file requests for records a public body does not want to
disclose.
Finally, a negative ruling could have further eroded the public’s
trust in government. What would an Illinois citizen think upon
learning that, yes, she was entitled to certain public records when
she made her FOIA request, but, no, she still cannot have the
records because, after the agency illegally denied her request, the
agency lobbied its friends in the General Assembly to pass a law to
justify its denial after the fact?
The Illinois Supreme Court’s ruling that the government can’t rely
on new changes in the law to retroactively justify an unlawful
denial of a FOIA request is an important step toward giving Illinois
taxpayers the full, consistent governmental transparency to which
they’re entitled.
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