Illinois Freedom of Information Act
The Illinois Freedom of Information Act, 5 ILCS 140/1 et seq., is an Illinois statute that grants to all persons the right to copy and inspect public records in the state. The law applies to executive and legislative bodies of state government, units of local government, and other entities defined as "public bodies". All records related to governmental business are presumed to be open for inspection by the public, except for information specifically exempted from disclosure by law. The statute is modeled after the federal Freedom of Information Act and serves a similar purpose as freedom of information legislation in the other U.S. states.
Once a person submits a request to inspect public records, the public body is required to respond within deadlines specified by FOIA. Under certain circumstances, the public body may charge fees for providing the records. Public bodies may deny access to certain types of information, such as invasions of personal privacy, preliminary drafts and other pre-decisional materials, and other types of information specifically enumerated by FOIA and other statutes. When a FOIA request is denied, requesters may file suit in the circuit courts, and potentially recover attorney's fees if they prevail in the litigation. Requesters may also appeal to the Public Access Counselor, which issues binding opinions on rare occasions, typically opting to resolve disputes through non-binding opinions or other informal means.
Illinois was the last state in the United States to enact freedom of information legislation. Before FOIA became effective, statutes granted limited access to records held by certain officials or governmental bodies, and courts recognized the public's right to access other records, subject to limitations established through common law. FOIA was first introduced to the General Assembly in 1974, but faced repeated resistance from Democratic lawmakers representing Chicago. FOIA was finally enacted in 1984, after lengthy negotiations between the legislature, executive, and civic organizations lobbying for or against the law. FOIA became the exclusive disclosure statute that filled the gaps left by other statutes, and it expanded the public's right to access information. However, the law was criticized for its weak enforcement provisions, with public bodies facing few incentives to comply. An overhaul of FOIA became effective in 2010, turning the Illinois law into one of the most liberal and comprehensive public records statutes throughout the United States. The new law strengthened FOIA's enforcement provisions and authorized the PAC to resolve disputes.
Purpose
The American understanding of the right to know is based on the First Amendment to the United States Constitution. Freedom of speech depends on freedom to collect information about which to speak, and the Framers of the Constitution recognized the importance of an informed populace to democratic government. The "right to know" is provided not by the Constitution, but rather defined by statutory and common law.Illinois law has recognized the public's right to access and inspect public records and information about the workings of their government. The courts have also recognized a common law duty to disclose public records, balanced against an individual's right to privacy and the interests of the government. Access to records concerning the use of public funds is guaranteed by the Constitution of Illinois, which provides: "Reports and records of the obligation, receipt and use of public funds of the State, units of local government and school districts are public records available for inspection by the public according to law." This constitutional provision has been implemented through the State Records Act and Local Records Act, which require agencies to permit inspection and copying of records related to public funds. Certain statutes have also required specific officials to make their records open to public inspection.
Since the public policy of Illinois has promoted access to public records, the enactment of FOIA did not drastically change the substance of Illinois law. FOIA is significant because it provides a comprehensive statutory statement of longstanding public policy, provides a codified balancing of competing interests recognized by common law, and establishes procedures to promote public inspection of records. The purpose of FOIA is codified in section 1 of the act:
However, FOIA further states that it is not intended to cause an invasion of personal privacy, to allow commercial interests to impose a burden on public resources, or to disrupt the other responsibilities of public bodies aside from their duty to provide access to public records.
The Illinois FOIA is modeled on the federal FOIA. The legislature intended that case law interpretations of the federal FOIA guide the Illinois courts in interpreting the state FOIA, though Illinois courts have also noted that the state and federal FOIAs may still be interpreted differently.
History
Prior to enactment
The first Illinois statutes concerning public access to records involved county offices. A law enacted in 1887 granted public access to records in the possession of a county recorder, and other statutes granted access to records of a county clerk or board of supervisors. The courts also recognized the legislature's authority to grant access to records in 1867, and the public's right to copy records in 1907. In the following years, the General Assembly began to enact disclosure provisions into various statutes, but such provisions were non-uniform and pertained only to specific agencies. Not all agencies were covered by disclosure requirements, and in those cases where a statute did not apply, the courts came to rely on common law to preserve the public's access to information.Common law granted taxpaying residents of a village or school district the right to inspect and copy records. However, appellate case law also held that private financial records submitted to a city government by franchise applicants were not public records, as they were private business records that happened to be in the possession of city officials. Under common law, whether a document was considered a public record was based on the purpose of the law that related to that type of document. A record may be considered a public record for one purpose, but not another. Judges also considered whether the requester had an "interest" in what was sought, and whether the record was "required to be kept". Common law was used to balance the public's right to know against competing interests, such as the rights to privacy and due process of the subject of the information, along with the government's ability to conduct its business efficiently and without undue interference. Due to a lack of guidance from the General Assembly, the courts often weighed these factors differently, arriving at inconsistent decisions for each case. Also, the Constitution of Illinois ensures that the financial records of local governments are open to disclosure, but since the Constitution also protects an individual's personal privacy, courts addressing constitutional questions were again faced with the balancing tests similar to common law.
The General Assembly enacted the State Records Act in 1957, and the Local Records Act in 1961. However, neither statute provided general access to records. The State Records Act was primarily concerned with the financial records of the state government. In 1979, the Supreme Court held in Lopez v. Fitzgerald that while the Local Records Act requires the preservation of public records, it does not impose an obligation on agencies to allow access to those records. The ACLU of Illinois reported issues with accessing building inspection reports and draft city ordinances. Exemptions under the State Records Act and Local Records Act were vague, but the laws did provide exemptions against invasions of privacy. Furthermore, common law recognized an exemption for "preliminary documents", applying to records that were "part of an investigation or decision making process upon which final action had not been taken".
Initial legislation
The first version of FOIA was introduced to the General Assembly in 1974 by Representative Susan Catania. Her proposal came after the Watergate scandal, and also the 1968 Democratic National Convention, which was held in Chicago and brought scrutiny to the administration of Mayor Richard J. Daley. However, Catania, a Republican, was a member of the minority party and had trouble gaining supporters for the bill. The Illinois Municipal League, a statewide lobbying organization for municipalities, opposed FOIA as burdensome and disruptive to local government. Other opponents included lobbying organizations for law enforcement and county officials. Impediments to reform included a strong patronage system in Illinois, especially in Chicago, the state's largest city. Chicago-based Democrats in the General Assembly often opposed FOIA initiatives in the mid-1970s, referring the matters back to legislative committees to avoid consideration. These actions reflected Chicago's secretive political climate. Daley, mayor of Chicago from 1955 through 1976, kept few records in writing, and was known to make decisions in a way that was difficult to monitor. This trend continued with the mayors after Daley's tenure, Michael Bilandic and Jane Byrne.FOIA was introduced during every legislative session from 1974 through 1982, but rejected each time. Supporters included the ACLU and Common Cause, who formed the Illinois Freedom of Information Coalition. The coalition included 26 civic organizations, such as the Chicago Urban League, Chicago Bar Association, League of Women Voters, and the Better Government Association. Jeff Shaman, of the ACLU and a professor at DePaul University College of Law, served as chief drafter of the new law, consulting the federal FOIA, similar laws in other states, and relevant case law. Other contributors to the draft legislation included counsel for the governor, a representative of the attorney general, and the Illinois Press Association. In August 1981, Common Cause and the Better Government Association conducted a survey of 126 state agencies, to assess how those agencies respond to requests for records. The study found that 72 agencies had no written policy on public access to records, 82 lacked a policy on response times, and 35 had no records that were required to be disclosed under the statutes in effect at the time.
In 1983, Mississippi became the 49th state to enact a public records law, leaving Illinois as the only remaining state without a FOIA. In the same year, reform-minded Harold Washington became the mayor of Chicago. Washington, an advocate for increased public participation in government, pledged during the mayoral campaign that he would issue a Freedom of Information order for city government. After the election, Washington's chief of staff signed Chicago's FOI order on May 16, 1983, and it became effective on August 6, 1983.