FOIA Fest postscript: Q&A with the Illinois Attorney General’s Office

Editor’s note: The Chicago Headline Club invited Illinois Attorney General Kwame Raoul to speak about the state of public records access at this year’s FOIA Fest. He couldn’t make it, but his office offered to respond to questions in writing.

We asked about the state of the Attorney General’s website (which went down for an extended period in 2021 after a computer hack), asked about the appointment of a new public access counselor (PAC) and inquired about FOIA during the pandemic and other issues.

Following are the unedited questions and responses.

CHC: Please provide an update on the status of the PAC website. Is everything up and running again?

AG: The PAC website is up and running. All binding opinions, including the three binding opinions issued so far in 2022, are available on that site, along with educational materials and past copies of the Public Access Counselor’s annual report. Additionally, the 2022 FOIA and Open Meetings Act trainings that FOIA officers, Open Meetings Act designees, and elected and appointed officials complete pursuant to the training requirements in those statutes are available on our website.

If individuals encounter difficulties accessing any of the materials or resources on the website, they can contact the Public Access Bureau at 877-299-3642 or for assistance.

Were there fewer appeals filed with the PAC during the website outage? Do you have a summary report that indicates the number of appeals filed over time?

In 2021, PAC received approximately 3,100 FOIA and OMA Requests for Review, which is fewer than we received in 2020 (3,575). Below, we have listed our annual totals of new matters before the Public Access Counselor since 2010. In each annual Public Access Counselor Annual Report, all of which are available on our website, we further break down each yearly total to outline the subtotals of Requests for Review alleging violations of FOIA as opposed to OMA, and the status of the complainant in each matter (member of the public, media outlet, or public body).
2020: 3,575
2019: 3,550
2018: 3,748
2017: 3,888
2016: 4,720
2015: 4,770
2014: 4,032
2013: 3,426
2012: 3,407
2011: 5,164 (includes 2,317 FOIA pre-authorization requests)
2010: 5,228 (includes 3,278 FOIA pre-authorization requests)

Leah Bartelt is listed as the Acting Public Access Counselor. Can you provide an update on the process for naming a permanent PAC?

Effective March 1, 2022, “Acting” will be removed from Leah’s title, and she will be the Public Access Counselor.

Have you noticed issues of FOIA compliance during the pandemic? If so, what is being done to mitigate that?

At the start of the pandemic, PAC received Requests for Review alleging that public bodies were not providing timely responses to FOIA requests, that they were asking requesters to agree to additional extensions of time, or were outright denying requests on the basis that they had shut down administrative functions due to the pandemic. In general, as public bodies equipped FOIA officers to work remotely and created environments where FOIA officers could safely return to the office, PAC received fewer of these type of complaints and worked to resolve the complaints we had received. We also issued a guidance document addressing FOIA and OMA compliance during the pandemic that
clarified that the Governor’s Disaster Proclamations and Executive Orders did not suspend the requirements and deadlines in FOIA.

Additionally, PAC received Requests for Review contesting denials of FOIA requests submitted to health departments (state and local) seeking different types of data related to the COVID-19 pandemic. Some of these Requests for Review presented novel issues of the scope of confidentiality provisions in Illinois public health statutes and de-identification of data to protect patient privacy. PAC attorneys worked to resolve some of those matters by mediating resolutions between requesters and health departments, and where that was not possible, PAC issued determination letters interpreting the cited statutes.

On one hand we have seen many PAC opinions and appellate court decisions in recent years upholding requesters’ rights to access information, particularly electronic records. On the other hand, agencies continue to avoid disclosure. Does the Attorney General believe the existing FOIA statutes adequately protect the public’s right to know? And can the Attorney General’s office take any further action to encourage disclosure and good-faith collaboration on the part of those agencies that routinely and wrongfully deny access to open records?

As demonstrated by some of the court opinions issued in the past few years, there continues to be confusion among some public bodies and requesters about information maintained in electronic databases and what constitutes creation of a new record. Public bodies are not required to create new records in response to FOIA requests. Courts have attempted to clarify the difference between requests that improperly seek a non-existent public record and requests that permissibly seek the compilation of existing electronic data into a specified format such as a spreadsheet. FOIA generally requires public bodies to compile raw data from an existing database in the format requested if it is feasible to do so, but does not require public bodies to analyze data and create records of the results, or to take information drawn from different recordkeeping systems and generate it in a cohesive format. PAC attorneys frequently educate public bodies about the case law on this issue to try to resolve any confusion. If the FOIA statute included a provision setting forth clearer guidelines, public bodies might better understand this complex issue. Similarly, clearer statutory language may assist requesters in drafting proper requests for electronic records.

With respect to the more general questions, it is not for the Attorney General’s Office to say whether the FOIA statute as a whole adequately protects the public’s right to know. Given the number of Requests for Review PAC receives – some of which we resolve in favor of the public and some in favor of the public bodies – and given the number of exemptions the General Assembly has chosen to include in the law, it is fair to say that there will always some who view the FOIA statute as too protective and others who view it as not protective enough. And, although the Attorney General’s Office’s authority is limited to resolving individual disputes, we are open to suggestions as to how we can more broadly encourage required disclosures and good-faith collaboration.