By Mari Devereaux
From never ending court dates and legal fees to stagnated stories, suing obstinate government agencies unwilling to comply with Freedom of Information Act requests can be frustrating.
But freelance journalist Matt Chapman said it’s sometimes necessary to file a lawsuit to figure out what information exists and to get that information if it’s not legally provided.
“The experience that I’ve had with litigation in FOIA is that it sucks, but it’s needed,” Chapman said.
Chapman said in recent years he has been involved in several lawsuits, and he’s now in litigation with the Chicago Department of Finance regarding the release of information in its parking tickets database.
On Saturday, Chapman joined other experts at the Chicago Headline Club’s FOIAFest 2021 to share their experiences and discuss what to do when local or federal government agencies refuse to release information that should be available to the public.
Matt Topic, an attorney at the civil rights and whistleblower firm Loevy & Loevy, said it’s important to understand there are differences between laws at the federal and state level.
In Illinois, Topic said if a FOIA request is denied outright, an agency does not respond by the required deadline, or it produces only some records — or none at all — and it appears there are more files purposely not being released, that is grounds to file a lawsuit challenging the denial of information under Illinois’ FOIA.
He said cases are heavily weighted in favor of the requesters who usually win their FOIA lawsuits.
“If you decide to sue, the government has to prove by clear and convincing evidence that it did a reasonable search for records … that an exemption applies,” Topic said. “They have to account for every document they withheld.”
Freddy Martinez, executive director of Lucy Parsons Labs, a Chicago-based organization focused on civic transparency and data liberation, discussed the Chicago mayor’s office not turning records over to a political action committee within 60 days, and he said the Chicago Police Department always responds to FOIA requests by saying they’re too burdensome.
“Especially with larger agencies, they know all the loopholes, and they will exploit them,” Martinez said.
The good news, Topic said, is that in Illinois, the law allows a requester to recover attorney’s fees if they prevail in court, meaning it is easy for firms like his to represent journalists at low-to-no cost.
Nona Tepper, a health insurance reporter at Modern Healthcare who won a FOIA denial lawsuit, said she’s glad she appealed the case to the Illinois attorney general and thought the process was fairly easy due to the forms and educational resources that exist online.
“Be prepared to stand up for yourself, and be confident in your decision,” Tepper said.