Local governments use pandemic to try to stall FOIA requests

FOIA advocates in Illinois successfully fought off attempts by local governments to slow access to public information in the early stages of the pandemic. But many journalists are still warily watching how the local leaders conduct business in the “new normal” of virtual meetings and limited or reduced access to government offices.

“You have to be vigilant all the time,” said Marie Dillon, director of policy for the Better Government Association.

Dillon was part of a team of advocates who pushed back when the Illinois Municipal League tried earlier this year to get Attorney General Kwame Raoul to declare FOIA as a “non-essential service” during the state’s stay-at-home order. The league is the main lobbying organization for the state’s municipalities.

FOIA provides the public a pathway to request government-controlled records, files or documents. While the law is commonly used by journalists to uncover otherwise undisclosed information and report it to the public, FOIA was created to be accessible to anyone.

“This is just the latest in an effort by government entities who are opposed to transparency to try to take advantage of the pandemic to keep people from getting records that they’re entitled to,” said Matthew Topic, one of the state’s leading First Amendment attorneys. Topic, a lawyer with Chicago-based Loevy & Loevy and outside general counsel for BGA, has litigated hundreds of FOIA cases across the country and helped obtain the release of the Laquan McDonald shooting video in 2015.

Dillon said almost as soon as the coronavirus became widespread this spring, she began to see Illinois governments cutting corners and declaring FOIA a non-essential function. This immediately became a point of contention between journalists and government officials.

Under Illinois law, government departments are required to respond to FOIA within five business days of receipt of the request. However when there might be an understandable shortage in staffing, it’s common practice to negotiate a longer deadline. That’s why FOIA activists like Dillon and Topic felt so vehemently opposed to any bill which would give governments the right to ignore FOIA altogether. The pair authored an op-ed for The Chicago Tribune stressing their viewpoint and commending Raoul for standing his ground.

On March 17, Raoul posted guidance for FOIA during the public health emergency.

“Public bodies … should continue to comply with FOIA and respond to each request promptly, to the extent they are able to, given the limitation on staff and resources during the COVID-19 pandemic,” the document said.

During the week of May 20, the Illinois General Assembly held a legislative session which lasted just over four days. The municipal league’s proposed FOIA restrictions were tucked into an omnibus bill on the night of May 21. The session was expected to end the next day. If the bill passed, the provision excusing FOIA requests for the remainder of the pandemic would be included.

“But it certainly feels like every legislative session there’s some bill introduced by the Illinois Municipal League or the Sheriffs’ Association attempting to create new exemptions or otherwise make it harder or impossible for people to get access to records,” Topic said.

Dillon echoed similar sentiments.

“It is not at all uncommon,” Dillon said. “All the time. It’s a constant battle.”

Executive Director Brad Cole of the Illinois Municipal League did not respond to repeated requests through its website for comment.

The provision proposed that FOIA deadlines would not apply during the emergency, retroactive to the beginning of it, and until 30 days after.

While a delay of 30 days might not seem drastically significant, according to Topic, those few weeks can become the difference between front-page news and a forgotten story.

“It’s hard enough to get the public’s attention on issues,” Topic said. “The farther you move what you have to say from the events that precipitated it, the harder it is to have people fully understand or appreciate what it is you’re trying to say. To delay by 30 days or more would basically allow public officials to escape scrutiny over their conduct during these times.”

There’s plenty a government might try to hide if FOIA weren’t in place to demand integrity, Topic said. He mentioned the records of public health departments as a major citation. However, the uplifting of FOIA wouldn’t just affect pandemic-related records — it affects all rightfully public information. For example, the withholding of police misconduct records in a time of major protests against police brutality could potentially permit officers to escape penalty for their actions.

“Our need to know about government activity and to hold governments accountable is not suspended because of the pandemic,” said David Greising, president and CEO of the BGA. “To just suspend FOIA, not only does that undermine accountability, it flouts the law.”

Dillon said she stayed up most of the night of May 21 writing testimony since she couldn’t testify in person. She and Topic had to submit their testimony to the BGA’s lobbyist in Springfield and hope for the best.

On the afternoon of May 23, the bill was amended, making the deadlines even longer than originally proposed.

“I almost thought we were sunk,” Dillon said. “But after they made it worse we got mad and energized, and the reporters kind of woke up.”

“As journalists we’re filing FOIA requests all the time during the pandemic,” said longtime investigative journalist Sam Roe. “How many cases are there? How many cases have there been in nursing homes? In packing plants? In schools? What are schools saying behind the scenes about reopening in the fall? These are all questions people really need to know to make basic decisions about how to conduct their daily routine.”

After much debate on the House floor, the bill failed, but with a motion to “reconsider.” Dillon said she and the BGA spent a few hours lobbying  the ‘no’ votes while other bills were being passed. Eventually, the FOIA provision was removed from the proposed legislation, and the bill passed without it.

“I don’t know what happened,” Dillon said. “I can just tell you we worked really hard and made a lot of noise and they did the right thing. So we’re very happy that it went that way, but I don’t know the magic formula for stopping it next time.”

While Dillon said she considers this a win, she knows this won’t be the last time she has to fight for FOIA. “It’ll never be good enough, in my opinion, and it’ll never be fixed.”

Emma Sulski is a senior at Loyola University Chicago, where she studies journalism and history. She has previously written and edited for Her Campus and The Loyola Phoenix. You can see more of her work at EmmaSulski.com or follow her on Twitter @SulskiEmma.