Illinois House and Senate Pass Sweeping New FOIA Legislation

Last week, the Illinois Senate and House of Representatives approved Senate Bill 189 that would significantly amend the Freedom of Information Act (FOIA) and would grant new oversight powers to the Attorney General regarding both FOIA and Open Meetings Act complaints. The Governor must still sign the bill in order for it to become law. If enacted, the bill would become effective January 1, 2010.

Among others revisions, the bill makes the following significant changes to FOIA:

• Requires all public bodies to designate one or more employees or officials to act as its FOIA officer(s) and to complete certain training. The list of the designated employees must be shared with the Attorney General’s Public Access Counselor.
• Shortens the time a public body must respond to a FOIA request from 7 to 5 business days, and limits extensions to an additional 5 business days unless the public body and requestor reach agreement on a longer time frame.
• Prohibits public bodies from requiring a standard form for submitting FOIA requests.
• Prohibits a public body from charging the requestor for the first 50 pages of black and white, letter or legal sized copies, and caps charges at 15 cents per page thereafter; if the copies are in color, the public body may not charge more than the actual cost of reproducing the records.
• Requires a public body to notify the Attorney General’s Public Access Counselor before denying any requests pursuant to FOIA’s exemptions for personal information or for preliminary drafts and notes in which opinions are expressed, and permits the Public Access Counselor to review such denials.
• Requires a public body to provide a detailed factual basis for the application of any exemption claimed when denying a request.
• Eliminates explicit personnel records and personal employee information from exemption and instead provides a general “personal information” exemption that is only applicable if the public body can establish a clear “unwarranted invasion of personal privacy.”
• Removes a public body’s internal appeal process for denials of FOIA requests. Appeals would now go directly to the Attorney General’s Public Access Counselor or the circuit court.
• Imposes a mandatory award of attorneys’ fees and costs if a court determines the requestor was entitled to the public records.
• Requires a court to impose a $2,500-$5,000 fine on any public body which the court determines willfully and intentionally failed to comply with FOIA, or otherwise acted in bad faith.

The bill also creates the Public Access Counselor’s office in the Office of the Attorney General. Under the bill, the Public Access Counselor is charged with reviewing and rendering final decisions on complaints made to the Public Access Counselor regarding violations of FOIA and the Open Meetings Act. As part of the review process, the Public Access Counselor may compel a public body to provide it with the documents relevant to the disputed request. The Counselor’s decision can be appealed for administrative review in accordance with the Illinois Administrative Review Law. Public bodies can also seek non-binding advisory opinions from the Public Access Counselor and may rely on those opinions when responding to requests. Each notice of a denial by a public body must inform the requestor of his or her right to review by the Public Access Counselor as well as the right to judicial review.

We will continue to monitor the bill and inform you of its progress. If the Governor signs the bill, each school district should prepare for the effective date of January 1, 2010. This will include training staff and adopting new policies and procedures. Our office is able to assist you with all of these matters. Please contact our office if you have any questions.