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.