Illinois’ Public Access Counselor frustratingly slow; AG candidates promise changes

The public ambulance service in the small northwestern Illinois village of Hanover was used to working in private. When Galena Gazette reporter Dan Burke asked its governing board for meeting agendas and minutes, it refused. When citizens asked for a budget, personnel qualifications and a list of purchases, it also refused.

Citizens’ rights to demand information

In Illinois, when reporters and citizens are denied access to public information or government meetings, they can appeal to the Public Access Counselor office in the state Attorney General’s office, one of only two of its kind in the country. A staff of 18 attorneys reviews the requests to determine whether documents must be disclosed under the Illinois Freedom of Information Act or whether a government body has violated the Open Meetings Act.

Earlier this year, Burke and the Gazette turned to the PAC for help after the ambulance board ignored its requests for information, including documents related to the firing of an ambulance driver who got into an accident and was subsequently found guilty of possession of methamphetamine. Troy D. Miller, who headed the ambulance service, was then rehired by his mother, Pat Miller, when she took over for him. Both were fired in 2017 after reporters and citizens started asking questions.

As the months dragged on while the attorney general investigated and the ambulance board continued to refuse requests for information, the paper ultimately sued. The case was settled in June, and the Gazette got what it deemed to be the most crucial documents it had requested: information related to Troy Miller’s accident and the insurance claim.

“I have filed other complaints… and the process usually comes to a grinding halt once they request materials from the public body,” Burke said of the PAC office. “They are quick to acknowledge the complaint and decide if further investigation is warranted, but the actual investigation and ruling dies in limbo.”

Public access: only nominally useful

The Gazette’s experience highlights a common complaint about the Illinois Public Access Bureau and its counselor’s office, which received 3,888 requests for review in 2017. It takes a frustratingly long time it takes to get resolution and if one comes, they generally are non-binding. In analysis of nearly 30,000 appeals the PAC has received, ProPublica Illinois found that government bodies around the state routinely ignore or misinterpret the FOIA and OMA, the investigative nonprofit reported last week.

The city of Chicago has repeatedly denied requests from Chicago journalists Carol Marin and Don Moseley, who have been trying for 2 ½ years to get records detailing how Chicago police officers shot and killed 16-year-old Warren Robinson after the boy fled police in 2014. When the journalists initially sought help from the PAC office to get the records, it took more than nine months for the attorney general to advise that they should be released.

“The city refused to turn the records over to that,” Moseley said. “We took it to court citing the AG ruling. Cook County Circuit Court ruled in our favor. But still the city has not turned them over.” (The judge called the refusal “anti-democratic” and accused the city of moving toward a fascist state).

It took nearly five years for the PAC to respond to a complaint from two Columbia College Chicago journalism professors that the Chicago School Board requires people to register in advance for its public meetings, effectively turning away people who want to attend. In May of this year, the PAC told the professors that they did not need to intervene because the board no longer used the registration process. But that is not the case. The school board continues to requires advance registration as stated on its website.

“Whenever you’re doing this, you are showing the public what’s going on,” said Travis Lott, a reporter with the County Journal in Percy, Illinois. “When it drags out for months, it’s really difficult to hold the public to attention.”

Lott asked the attorney general’s office to intervene last year after the Steelville School Board in southern Illinois went into closed session to discuss policies around children with peanut allergies. At the time, the board cited “pending litigation” from two parents who had asked for clarification about how their child with a peanut allergy was protected at school, Lott said. The parents had never threatened to sue the board, he added.

Lott wanted the attorney general to determine whether the closed session to discuss the issue was appropriate. The attorney general’s office requested that the school board provide minutes and recordings from the meetings. The board “ignored the deadline,” Lott said. “We went back and forth with the AG for months. It took a really long time to get any sort of determination, and nothing was binding.”

When Lott finally got the recording from one of the closed sessions (the board said it forgot to turn on a microphone for the other), he couldn’t understand why the board hadn’t just turned it over in the first place. “It wasn’t particularly egregious,” Lott said. “It was more of a general discussion.”

In addition to Illinois, Indiana is the only the other state that has a formal Public Access Counselor office, according to the D.C.-based National Freedom of Information Coalition.  Colorado has a Public Access Information committee. PAC offices gives citizens and journalists a pathway to appeal denials of information without automatically having to go to court.

Changes coming to Illinois public access?

Don Craven, general counsel the Illinois Press Association, Illinois Broadcasters Association and the Illinois News Broadcasters Association, said it enables regular citizens to attempt to get some resolution for open meetings or FOIA, “without spending a lot of money, without having to jump through expensive hoops,” Craven said. “To that extent, it’s been a great thing,” he added. “It’s far from perfect. But bottom line it’s helps a whole lot.”

He said the PAC, which has offices in Springfield and Chicago, is simply understaffed.

“I think part of that problem is that they are busy,” he said. “I don’t think it’s a case that they aren’t showing up, they aren’t working. It’s simply a question of they’ve got a lot of work.”

Lisa Madigan, the longtime Illinois Attorney General who announced last year that she would not run for a fifth term, noted in her 2017 annual report that 35,000 matters have been submitted since the PAC office was established under her watch in 2010, with 92 percent of them resolved.

The Republican and Democratic candidates vying to become the next Illinois attorney general both told GJR that they would increase staffing at the PAC  if elected.

Illinois Sen. Kwame Raoul, a Democrat who sponsored the legislation that created the public access counselor, said one of his top priorities in his first few months in office will be “appropriately staffing” the office. “The backlog of Freedom of Information and Open Meetings Act requests is clearly too great,” he said. “Long delays in responding to such complaints from the public and the media frustrate the intent of the legislation.”

Republican Erika Harold also pledged to “advocate for the allocation of additional resources” to the PAC office.” In additional she called for each government body covered by FOIA and the OMA to “quantify and report the amount of staff time and resources that is dedicated to responding to requests.” Lastly, she called on the PAC to issue more binding opinions. In 2017, the PAC issued just 15 binding opinions.

Jeff Egbert, publisher of the Pinckneyville Press in southern Illinois, said the non-binding opinions carry little weight.

“It comes back to the local elected state’s attorney to do something,” he said. “In several of my cases, the state’s attorney has possibly been in the room when the violation has occurred. The government is working against us.”

Jackie Spinner is the Midwest Editor of Gateway Journalism Review. She is an associate journalism professor at Columbia College Chicago and a former staff writer for The Washington Post. Her Twitter is @jackiespinner.