Inside AG Madigan’s Public Access Counselor Office

Springfield, IL. (ECWd) –

The Illinois Attorney General’s Public Access Counselor’s Office (PAC) is responsible for answering inquiries on various subjects, to include the Freedom Of Information Act (FOIA), and the Open Meetings Act (OMA). These inquiries come from public officials, media, and citizens either in the form of telephone inquiries or written and formal complaints, or requests for review, of alleged violations of those Acts.

The authority of the PAC for determining these alleged violations is codified in the FOIA [5 ILCS 140/] , Section 9.5, and in the OMA [5 ILCS 120/], Section 3.5.

Listed on the PAC’s website are the annual reports going back as far as 2005.

The chart below reflect the figures from annual reports, with the exception of 2010 and 2011 where I omitted “pre-authorization” letters that are no longer in use today.

So, discounting 2009, over the period of five years the workload of written complaints has more than doubled, with 2015 not looking much better. With citizens becoming more involved in their local governments and learning the FOIA and OMA laws, the number of complaints will only keep climbing.

Over the past couple years, the PAC has had significant turnover, and I have noticed the turnover when trying to  contact the person that had been working a complaint, only to find out they no longer work there. It is also my understanding the PAC has hired 2 additional attorneys and a clerk and are seeking to hire more.

The PAC currently consists of 12 attorneys including the Public Access Counselor, and Deputy Bureau Chief and an additional attorney who must edit, review, and approve the product of the remaining.

In 2014, there were around 250 business days per year, with over 4000 complaints filed. This means that an average of 16 complaints per day would need to be closed to keep up with current demand. Add to that, final determinations must be correct according to law, meaning they are not advocates for either party, they are advocates for the law.

Researching and writing are not their only jobs within the PAC – some other duties include manning the PAC hotline, election duties, and conducting training. Then when you figure in sick and vacation days, it increases workloads of the other workdays beyond the average.

With that said, we need to turn our sights on some sort of solution of how to streamline the FOIA/OMA Complaint process. There is the obvious solution of simply hiring additional staff, but aside from that, I propose the following to the legislature:

1.  Mandate payment of penalties, costs, and attorney fees to citizens when they prevail or substantially prevail. Currently, there are two competing Appellate Court decisions determining attorney costs for FOIA suits. One decision awarded the costs after production of records, another decision said production of records even after a suit was filed does not constitute “prevailing” in the suit. This needs fixed. This is an unwarranted cost placed on the FOIA requester.

2.  Change the wording in the OMA from the Court “may” award attorney fees, to “shall” award attorney fees. This takes the question of attorney fees out of the picture when a Complainant prevails.  A citizen should never be in the position of having to incur a cost in order to enforce their rights under OMA or FOIA.

3.  Create some sort of “arbitration” option to work thru any disputes or maybe put some retired judges in charge of hearing FOIA and OMA cases to ease the burden on the Circuit Court system.

4.  Mandate that public bodies audio or video record open, as well as closed meetings – and post the recorded open meetings on their website.

5.  Enable the PAC to impose a fee on the public body should they determine the public body had violated either Act.

These changes could have an enormous impact on the workload of the AG’s PAC and streamline the legal process for citizens who choose to go that route. They are not designed to make prevailing in a suit a payday, but simply to keep citizens from incurring a cost when they prevail.