Wednesday, April 13, 2011

Plan to rollback open records law advances, but with commitment to negotiate changes

Just a little more than a year since sweeping changes to the Freedom of Information Act -- the state's open records law which is designed to guarantee individuals access to public documents -- took effect, lawmakers are considering a handful of proposals which would roll back parts of this vital law.

One of these proposals, HB 340, was debated in a House judiciary committee this morning. ICPR submitted testimony opposing this proposal. We were joined in our opposition by the Attorney General's office and the Better Government Association, among other organizations.

The proposal advanced out of committee on a 7-3 vote, but because of the substantial opposition to the plan, HB 340 sponsor Rep. Linda Chapa LaVia agreed to hold the bill on second reading so that changes to the bill can be negotiated. Reps. Elaine Nekritz, Dwight Kay and Ann Williams voted against the plan. Reps. Mike Connelly, Naomi Jakobsson, Art Turner, Lou Lang and Chapa LaVia supported the bill, as did Rep. Jil Tracy, who noted that her "yes" vote was given because of the sponsor's offer to negotiate revisions to the plan.

ICPR welcomes the opportunity to discuss ways to narrowly tailor the legislation in a way that will not negatively impact the public's ability to access public records. Below is a copy of ICPR's testimony which was submitted to the committee prior to the vote.

Testimony to the Illinois House Judiciary I Committee on HB 340
Illinois Campaign for Political Reform

The Illinois Campaign for Political Reform is a non-partisan, non-profit, public interest group that advocates for transparency and accountability in Illinois politics and government.

ICPR strongly opposes HB 340 and urges this committee to reject this proposal.

Two years ago, in the wake of the Blagojevich impeachment, ICPR worked with the Attorney General’s office, the Legislature, the news media and other public interest groups to negotiate changes to FOIA with the goal of streamlining the records request process and increasing compliance. Those revisions won overwhelming, bipartisan support from both chambers of the legislature.

ICPR valued that opportunity to analyze the law and debate opportunities for improvement, and we are disappointed that a similar, open model was not used to organize the discussion around this and other pending FOIA bills. The Freedom of Information Act directly impacts the people of Illinois, not just the public bodies who must respond to records requests.

There are many problems with HB 340, and several of them can only be characterized as dangerous.

This proposal would strike at the general public’s right to access information by eliminating the current provision in statute which guarantees requestors can access a token number of black-and-white pages without additional charge. Allowing taxpayers to get 50 pages of printouts without additional cost – because let’s keep in mind that they have already paid for them with their tax dollars – is not an unreasonable burden.

The anecdotal evidence that supporters of HB 340 have identified, of FOIA requestors who may seek to exploit this exemption through separate requests for 50 pages, could be addressed in a narrower way. Eliminating this provision entirely in statute is an exaggerated and inappropriate remedy to a purported problem whose extent has never been documented.

Along the same lines, HB 340 would make an unnecessary change to a provision in the law which currently directs public bodies to provide requested records, when possible in a format requested by the individual. FOIA does not direct public units to convert files to a designated format.

However, HB 340 would give public bodies the sole discretion to determine the electronic format in which they will provide public documents to requestors, provided only that the format is “generally available to the public.” This could render some requested records meaningless. Imagine if a 1,000-page spreadsheet was put into a non-searchable PDF. That format would render the document largely inaccessible and far less useful than the format in which it is normally maintained. Here, too, the problems cited by proponents can be addressed in a much more fitting and narrow way.

The remaining part of the legislation would rework the “commercial purpose” definition.

We objected to the creation of the commercial purpose track in 2009 because we do not think that the requestors' intent should have any bearing on the right of the public to obtain documents. However, in the spirit of compromise and in order to secure passage of other positive provisions, we accepted this language.

HB 340 would greatly broaden the "commercial purpose" language just a little more than a year since the changes took effect.

The unusual deference that this legislation would give public bodies in responding to commercial purpose requests should alarm the members of this committee. This proposal would give public bodies free reign to interrogate they suspect are commercial, even those who have already identified as commercial requestors, as to their intent. What concern is it to a public body what specific purpose the requester will use the sought record for? The bill offers no explanation of why the specific purpose of the request needs to be gathered by the public body – and the interrogation itself will surely intimidate individuals requesting documents that are not exempt from disclosure.

The implicit message of this portion of the legislation is that the purpose of the record requestors’ FOIA would govern the speed in which records are produced. And under this language, a public body could declare a request is commercial and subject the requestor to an endless loop of "clarification" demands before beginning a search for the requested records.

Moreover, HB 340 would greatly expand the statutory definition of a “commercial purpose” in ways that would limit all uses of public documents. Take an organization such as my own: ICPR publishes and makes available to the public an annual report detailing local governments’ use of contract lobbyists. Although the purpose of our report is to shed light on the expenditure of public funds, some lobbyists have pointed to our report as evidence that their rates are reasonable. As such, would a local government dispute that our report is for “academic, scientific, or public research or education,” which remains an exemption, because the report could be used to “further a commercial … enterprise" under the new definition? HB 340 would give local officials the means to stymie our non-profit mission.

Most troubling of all, for a group like ICPR, is that the proposal creates a perpetual obligation on all FOIA requestors -- commercial and non-commercial alike -- to keep public records secret if the public body ever denies access to those records to a commercial requestor. Section 3.1 (d) would levy penalties against anyone who delivered public documents to a commercial entity who used those records without paying the commercial rate. This would apply to documents obtained by commercial and non-commercial requestors alike, and even to documents that were obtained without a formal FOIA request.

This section is over broad, overly punitive and completely contrary to the spirit and intent of FOIA, which is to recognize that records held by a public body belong not to the public body but to the people.

But even though there would be no guarantee that individuals would get access to their requested public records in a timely fashion, a responding public body would be granted sweeping abilities to charge a host of new fees related to fulfilling the request. A public body, under this proposal, could task a staffer making a six-figure salary with responding to requests to charge an artificially inflated rate and, again, to discourage the disclosure of public records.

Even if the retrieval fee calculated wasn’t prohibitive, I question how a public body could consistently and accurately estimate these retrieval cost. Prior to the 2009 changes, per page copying fees varied widely between public bodies. and the requester paid the amount, the public body would be under no obligation to provide those now paid-for documents in a timely manner.

FOIA has never allowed for public bodies to charge for staff time or retrieval costs -- a recognition that taxpayers have already paid for these documents.

Just as we worry about the expansion of the commercial purpose definition, we are concerned about the precedent that would be set with the establishment of these new fees.

Public records are public records regardless of the intent or identity of the requester. The “commercial purpose” language was adopted by the General Assembly to alleviate some of the pressure public bodies may feel when handling multiple FOIA requests, and under the accelerated timeframe established in the revision approved in 2009. Since the revision of the FOIA, there has been no documentation of the purported problems which HB 340 would address. Without that evidence, it's hard to understand what purported problems this bill would remedy, and why it is written so broadly.

The framework proposed by HB 340 is simply unworkable. This committee should reject this bill outright.

If representatives from public bodies feel that there are portions of the statute that need revision or reworking, the Legislature should start fresh, beginning with an open discussion which includes representatives from all interested parties.

Thank you.

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