Are You Ready For The Amended Illinois FOIA?

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January 1, 2010 is days away and so is a public body’s responsibility to comply with the amendments to the Illinois Freedom of Information Act (FOIA), 5 ILCS 140/1 et seq. Public Act 96-542, effective January 1, 2010, amends the procedures required when responding to FOIA requests, changes FOIA’s previous list of exemptions, and expands penalties for failure to comply.

The following Q&As should help you assess your readiness for implementation of the new FOIA and explain some of its new requirements.

Have you appointed a Freedom of Information Officer?

The new FOIA requires that all public bodies designate one or more public officials or employees as a Freedom of Information Officer who is responsible to:

• Receive FOIA requests submitted to the public body
• Ensure that the public body responds in a timely fashion
• Issue responses under FOIA
• Develop a list of documents or categories of records that the public body must immediately disclose upon request.

The designated Freedom of Information Officer must complete an electronic training curriculum developed by the Illinois Attorney General’s Office of the Public Access Counselor (PAC) on or by June 30, 2010 and annually thereafter.

Are you prepared to promptly revise your policy and procedures consistent with the requirements of the new FOIA?

Most public bodies have a policy that designates its responsibilities under Illinois’ FOIA and a system of procedures for implementing those responsibilities. Since the responsibilities of a public body under FOIA will significantly change as of January 1, 2010, a public body should adopt a revised FOIA policy and procedures consistent with the requirements of the new law in the near future if it hasn’t already taken such action. Until such policy and procedures are developed and adopted, the public body must comply with the requirements of the new FOIA effective on January 1, 2010 even if those requirements are inconsistent with its existing policy. If you are unsure of your obligations under the new law as measured against your public body’s existing policy, you should consult with your legal counsel to assist you in understanding how to properly implement FOIA until such time as your policy and procedures are revised.

Are you ready to respond to a FOIA request within 5 business days?

Except in certain limited circumstances, the new FOIA will require a public body to comply with or deny a request for public records within 5 business days rather than 7 working days as required under the old FOIA. The response time can be extended another 5 business days from the original due date for statutorily specified reasons. Additionally, the new FOIA allows the person making a request and the public body to agree in writing to an extension of time for compliance.

Exceptions to the 5-Day Response Period

Upon request, a public body must be ready to immediately provide access to or copies of those records that the public body’s Freedom of Information Officer has designated as immediately disclosable. If a request is for records to be used for commercial purposes, a public body has 21 working days to respond and if the request is for specified arrest and criminal history information maintained by State or local criminal justice agencies, the new FOIA requires that the reports be furnished as soon as practicable, but in no event later that 72 hours after the arrest. (The requirements to provide arrest and criminal history information do not apply to records subject to the confidentiality mandates of the Juvenile Court Act).

Do you understand the importance of responding within the time required under the new FOIA?

A public body that does not comply with the new FOIA’s response deadlines relinquishes its ability to assert that compliance with the request is “unduly burdensome” and cannot charge for copying fees. Furthermore, as in the past, if a public body does not respond in the time required, the public body may be deemed to have denied the request.

Do you understand that you must honor any written request for public records and may honor oral requests for information?

The new FOIA provides that requests for information or records can be made in writing directed to the public body by personal delivery, mail, telefax, or other available means, including e-mail. A public body may have a standard form for FOIA requests but cannot require its use. Furthermore, the new FOIA provides that a public body may honor oral requests.

Have you adjusted fee schedules for charges related to responding to FOIA requests?

The amended FOIA continues to allow public bodies to charge fees reasonably calculated to reimburse for actual costs. However, no fees can be charged for the first 50 pages and no more than 15 cents per page thereafter for copies of black and white, letter or legal size documents. Furthermore, the new FOIA specifies that the cost for certifying a record shall not exceed $1.

Charges Related to Furnishing Information in Electronic Format

The new FOIA provides that if a person requests a copy of a record maintained in an electronic format, then the public body must furnish it in the electronic format specified by the requester. If it is not feasible to furnish the public records in the specified electronic format, then the public body must furnish it in the format in which it is maintained or in paper format at the option of the requester. A public body may charge for the actual cost of purchasing the recording medium, whether disc, diskette, tape, or other medium but cannot charge the requester for any personnel costs associated with the search for, review of, or reproduction of the records.

No Charge for Electronic Copies

Except as expressly authorized, statutory fees applicable to copies of public records when furnished in paper format are not applicable to those records when furnished in electronic format.

Have you posted the requisite information on your website?

The new FOIA requires that a public body which maintains a website post the following information on its website:

• Statutorily specified information related to the public body
• A brief description of the procedures for the public to request information and public records
• A directory designating the Freedom of Information Officer or Officers
• The address where requests for public records should be directed
• Any fees allowable to be charged for disclosure of records pursuant to FOIA.

Do you understand what “public record” means under the new FOIA?

The new FOIA defines “public records” as:

All records, reports, forms, writings, letters, memoranda, books, papers, maps, photographs, microfilms, cards, tapes, recordings, electronic data processing records, electronic communications, recorded information and all other documentary materials pertaining to the transaction of public business, regardless of physical form or characteristics, having been prepared by or for, or having been or being used by, received by, in the possession of, or under the control of the public body.

 

The key addition to the definition of “public record” is the specific inclusion of electronic data. This addition imposes a broader accounting on a public body—not only must the public body account for electronic records that may be stored locally on individual hard drives or in password-protected e-mail accounts, the public body may also need to review records to determine if any public business transactions were conducted through the use of personal e-mail accounts.

The new FOIA explicitly establishes the following categories of records as public records which are subject to inspection and copying unless a specific exemption applies: arrest reports, criminal history records, certified payroll records under the Prevailing Wage Act, records of funds, and settlement agreements.

Furthermore, the new FOIA specifically extends its reach to include public records not in the possession of a public body but in the possession of a party with whom the agency has contracted to perform a governmental function on behalf of the
public body.

Do you understand what limited personnel information is exempt from disclosure under the new FOIA?

The new FOIA specifically provides that “all records in the custody or possession of a pubic body are presumed to be open to inspection or copying.” As in the past, the new FOIA (at Sections 7(1) and 7.5) exempts certain enumerated categories of documents from inspection and copying. Significantly, “personnel files and personal information maintained with respect to employees, appointees or elected officials” are no longer specifically exempt from disclosure under FOIA’s Section 7(1). Rather, the new FOIA generally exempts “private information, unless disclosure is require by another provision of [FOIA], a State or federal law or a court order” and “personal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”

“Private information” is defined under the new FOIA as:

[U]nique identifiers, including a person’s social security number, driver’s license number, employee identification number, biometric identifiers, personal financial information, passwords or other access codes, medical records, home or personal telephone numbers, and personal e-mail addresses. Private information also includes home address and personal license plates, except [in certain circumstances].

 

The new FOIA defines “unwarranted invasion of personal privacy” as “the disclosure of information that is highly personal or objectionable to a reasonable person and in which the subject’s right to privacy outweighs any legitimate public interest in obtaining the information.” The new FOIA maintains language from the original FOIA specifying that the “disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of
personal privacy.”

The new FOIA further exempts from disclosure “records relating to a public body’s adjudication of employee grievances or disciplinary cases” except that “the final outcome of cases in which discipline is imposed” is not exempt from disclosure.

Section 7.5 of the new FOIA lists 14 statutory exemptions, including a provision which specifies that records prohibited from disclosure by the Personnel Records Review Act are exempt from disclosure. This new addition has created confusion since the Personnel Records Review Act does not specifically prohibit disclosure of personal employee information, but rather primarily addresses an employee’s access to his or her own personnel records and notification which must be provided to an employee if certain records are disclosed to a third party.

Balancing the Privacy Interests of Public Officials and Employees Against the Public’s Interest in the Information

Since there is no longer a blanket exemption for personnel files and personal information, a public entity’s concern about protecting personal privacy of its employees and officials must be carefully balanced against the public’s legitimate interest in obtaining the information. To assist in assuring this balance is appropriately implemented by public bodies, the new FOIA requires additional review by the Illinois Attorney General’s appointed Public Access Counselor who will determine whether further investigation is warranted before the public body can deny access to a requested personnel record.

What does this mean? If a public body believes that personnel information is exempt because disclosure would constitute an “unwarranted invasion of privacy” under the new FOIA, written notice must be provided to the requester and the Public Access Counselor and the PAC will determine whether the public body can deny access to the record or whether further investigation is warranted. Because the law places the final determination regarding disclosure of such records with the Public Access Counselor, it is critical that a public body compile as many facts and as much information regarding the individual privacy interests implicated by the request at the time it submits the request for review. Doing this preliminary legwork will also serve the public body’s interests if a requester files a lawsuit seeking to have a court review the question of access to the records. The revised FOIA provisions now impose a specific burden of proof that a public body must meet to establish that an exemption applies to a request: that burden of proof is clear and convincing evidence. Since a party that prevails in such litigation is entitled to attorneys’ fees, building a strong evidentiary foundation from the start may also minimize exposure to attorneys’ fees.

Do you understand what you must advise a requester if you are denying his or her request for public records?

As in the past, if a public body is denying a FOIA request, denials must be in writing and must state the reasons for the denial and the names and titles or positions of each person responsible for the denial. In addition, the new FOIA requires that for any exemptions relied upon, the response to the requester must also include a detailed factual basis for the application of the exemption and citation(s) to supporting legal authority. The public body must also inform the requester of his or her right to review by the Public Access Counselor and provide the address and phone number for the PAC. Each notice of denial must also inform the requester of his or her right to judicial review under FOIA and should not include notification that the denial can be appealed to the head of the public body as the new FOIA has eliminated the statutory authority for that step in the appeal process.

Additional Requirement When Asserting Exemption for “Personal Information” or “Preliminary Drafts”

Under the new FOIA, if the public body asserts either FOIA’s exemption for “personal information” disclosure of which would be an “unwarranted invasion of personal privacy” or the exemption for “preliminary drafts,” then the public body must provide written notice both to the requester and to the Public Access Counselor of its intent to deny the request in whole or in part. This notice must include:

• A copy of the request for access to records

• The proposed response from the public body

• A detailed summary of the public body’s basis for asserting the exemption.

Within 5 working days after receipt, the PAC will notify the public body and the requester whether further inquiry is warranted. In such case, statutory procedures contained within the new FOIA regarding the review of denials, including the production of documents, will be applicable.

Do you understand what the penalties are under the new FOIA?

The new FOIA expands the penalties for a public body’s violation of FOIA. The amended Act provides for courts to impose a civil penalty of at least $2,500 and up to $5,000 per occurrence for a public body’s willful and intentional failure to comply with FOIA or for other bad faith activity. Furthermore, the new FOIA provides for the mandatory award of attorneys’ fees to a requester who prevails in challenging a denial.

Who should you contact if you need assistance in responding to a FOIA request after January 1, 2010?

If you need assistance in appropriately responding to FOIA requests received on or after January 1, 2010, any one of the following Seyfarth Shaw attorneys can assist you:

• Mary Kay Klimesh at mklimesh@seyfarth.com and 312.460.5985
• Abby Rogers at arogers@seyfarth.com and 312. 460.5659
• Yvette Heintzelman at yheintzelman@seyfarth.com and 312.460.5291
• Jill Leka at jleka@seyfarth.com and 312.460.5921

Do you feel the need to learn more about the new FOIA?

Seyfarth Shaw will be presenting a webinar on Tuesday, January 12, 2010 from noon until 1:30 p.m. addressing the new FOIA with helpful suggestions for compliance. Mary Kay Klimesh, Jill Leka and Yvette Heintzelman will all participate in this program.