Quick Hit Ellyn Fortino Monday June 30th, 2014, 3:14pm

Illinois Government Transparency Advocates Urge Against Veto Override Of 'Bad' FOIA Bill

Government transparency advocates are urging the Illinois General Assembly to opt against overriding Gov. Pat Quinn's recent veto of a bill that would "damage" the state's Freedom of Information Act (FOIA).

The FOIA legislation, HB 3796, is a "step in the wrong direction" that would hurt the public's right to access important government data and information, said Alden Loury, senior policy analyst at the Chicago-based Better Government Association, an independent, non-partisan government watchdog group.

"We applaud Governor Quinn for taking this [veto] action and we implore the General Assembly to follow his lead and not override this bill," Loury said at a Monday morning press conference at the James R. Thompson Center.

The FOIA measure cleared both the House and Senate with veto-proof majorities at the end of May just before the spring legislative session ended. The House passed the bill on May 27 by a 77-36-1 vote. House Speaker Michael Madigan (D-Chicago) voted "present." By a 41-1 vote, the bill sailed through the Senate on May 30, with the lone 'no' vote coming from State Sen. Tom Cullerton (D-Villa Park). Lawmakers head back to Springfield in November for the fall veto session, which takes place November 19 to November 21 and December 2 through December 4.

State Rep. Barbara Flynn Currie (D-Chicago) and State Sen. Michael Hastings (D-Tinley Park) are the main sponsors of the measure, which seeks to create a new "voluminous request" category within the FOIA law to address concerns raised by some local municipalities about large requests for public documents.

"The public bodies in this instance wanted to curb the use of the FOIA by these so-called frivolous [and] harassing FOIA requesters," said Maryam Judar, executive director of the Citizen Advocacy Center, an Elmhurst-based non-profit, non-partisan community legal organization "dedicated to building democracy for the 21st century."

"It's a very bad idea to take the public records request act and to legislate around the bad apples ... the abusers of FOIA," she said.

Judar and other government transparency proponents point out that no documentation has been released to the public detailing the supposed problems that the bill looks to solve.  

"This is an act that belongs to the people of Illinois," Judar said of the Freedom of Information Act. "It's not an act that the public body gets to bend at its will because they don't like someone who's making a FOIA request, or they deem that person is harassing [them]."

Good government advocates warn that the legislation's "voluminous request" designation would delay the production of public records and increase the costs for individuals seeking documents.

In his veto message, Quinn wrote that HB 3796 "is a bill that reduces government transparency by limiting the ability of citizens to seek public records under the Freedom of Information Act."

“The bill as proposed would make it more difficult for citizens to obtain a large volume of records," Quinn added. "It would also slow down the process for individuals who lack electronic means to request or obtain information. Such burdens on the public penalize anyone seeking to learn more about their government.”

Loury called the measure a "knee-jerk reaction" to address the FOIA issues raised by local government bodies.

"The Illinois Freedom of Information Act should be protected," he stressed. "This law is in place to guarantee that the public has the access to the information that belongs to them. If there are challenges to responding to that law, let's sit down and talk about what those challenges are, and there may be far more reasonable ways to remedying those things."

"It could just be having a better understanding of the law that currently exists and taking advantage of the undue burdensome exemption; taking advantage of the reoccurring requester provision; taking advantage of things that are in place designed specifically to handle the concerns that have been expressed that led to this legislation," Loury explained.

Abe Scarr, director of the Illinois Public Interest Research Group (Illinois PIRG), a statewide citizen-funded consumer advocacy organization, said HB 3796 is a "bad bill because it came from a bad process."

"The bill was introduced on the Friday before Memorial Day weekend in the final, hectic days of the legislative session and was quickly passed through both chambers," he stressed. "Had the legislature had the time to engage in a full, public debate and public scrutiny on this bill, they would have been able to hear from members of the public and affected parties on why this bill is not good for Illinoisans. "

The bill would deem "voluminous requests" as those that ask for more than five different categories of records in a 20-day period, for example. A single FOIA request would also be categorized as "voluminous" under the bill if it requires the compilation of more than 500 pages of records, unless a single requested record, such as a report or memo, exceeds 500 pages. Members of the media, non-profits as well as scientific and academic organizations would be exempt under the bill Quinn vetoed. 

As part of current state law, FOIA requesters seeking records in electronic format can be charged the actual cost of the CD, jump drive or other mediums containing the requested documents. This cost typically works out to be $1 or less for most FOIA requests, said Brian Costin, director of government reform at the Illinois Policy Institute, "an independent research and education organization generating public policy solutions aimed at promoting personal freedom and prosperity in Illinois."

Costin called HB 3796 a "watchdog tax," noting that the bill would increase such costs by as much as "10,000 percent to a Freedom of Information Act requester." The bill, Costin said, would allow government bodies to charge up to $100 for a single FOIA request for PDF-formatted documents that use more than 160 megabytes of data space. FOIA requesters could also pay as much as $100 if the requested electronic record is more than four megabytes of data and is not in PDF format, such as an audio or video recording.

"The effect of this bill is to discourage people from making FOIA requests and being public watchdogs and allows the government to escape public scrutiny," he explained. "Government watchdogs should be treated like valuable resources, not public nuisances, which is what this bill does. Government belongs to the people and it should be accountable to the people."

Instead of worrying about "problem FOIA requesters," Costin said public bodies should put as much information online as possible.

"At the very least, you shouldn't try to burden FOIA requesters (with) high charges and longer time frames to respond to FOIA requests, as this bill does," he said. "A very large chunk of the the FOIA requests that are made to local governments are [for] basic things that should be online anyway."

Elmhurst resident Tamara Brenner has requested public documents from the city of Elmhurst on multiple occasions. As a regular FOIA user, Brenner said she "would feel intimidated under this new regulation because of the labeling that would occur and because of the fees that are involved."

"I don't think I should be paying additional money to obtain public documents that I've already paid for by virtue of being a taxpayer in the city," she said.

Some of the other groups against HB 3796 include the American Civil Liberties Union of Illinois, the Chicago Headline Club, the Chicago Appleseed Fund for Justice and the Illinois Campaign for Political Reform.

Dick Simpson, former Chicago alderman and a political science professor at the University of Illinois at Chicago, also opposes the FOIA legislation.

"This bill will further shackle the public in their attempts to hold government accountable for their actions and the expenditure of their tax dollars," Simpson said in a statement. "It proposes a solution for a problem of voluminous requests that have not been shown to exist. Such remedies should be developed publicly only after there is a proven problem. There is too little sunlight on the dark corners of government already."

When asked whether government transparency groups would consider taking legal action against the measure if the legislature overrides Quinn's veto, Judar said, "We hope that we wouldn't have to get there," adding that the organizations would also "have to discuss our options."

Costin predicts some legislators who voted for the bill will now "realize this is a bad deal" and will vote against a possible veto override.

"And there will be other legislators that will see all these organizations talking about this important issue and will fear voting 'yes' to override," he added. "I think as long as we keep the public pressure up, that it will be much harder to pass this bill than it was last time underneath the cover of the last few days of the legislative session." 

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