FOIA Amendment should not be retroactive, amicus brief argues –

SPRINGFIELD, IL. (ECWd) –

The Edgar County Watchdogs and the Illinois Policy Institute have submitted a joint friend-of-the-court brief, Amici Curiae, to the Supreme Court of Illinois in the case of Institute For Justice v. Illinois Department of Financial and Professional Regulation. The joint brief urges the Illinois Supreme Court to reverse a decision by the First Judicial District and require the government to abide by the Illinois Freedom of Information Act as it was in force at the time of the request for public records. This case concerns individuals, not-for-profits, and media organizations because the government could simply decide it did not want to provide certain requested records, and change the law to be retroactively effective to avoid producing potentially embarrassing public records gathered in the pursuit of further transparency and general newsgathering activities. 

“The government should not be able to retroactively keep public records from the public,” said Kirk Allen, co-founder of the Edgar County Watchdogs. “The current ruling effectively stifles the public’s and media’s ability to gather information, litigate for access to information, and keep the public informed without the risk of being legislated out of justice in a court of law.” The joint brief argues that an Amendment to a law should not be retroactive, especially when the Amendment does not state that it applies retroactively.

In 2014, the Institute for Justice (IJ) filed a request for public records from the Illinois Department of Financial and Professional Regulations (IDFPR), the request was denied, and the IJ filed suit to gain access to those requested records. In the middle of the suit, the Legislators passed, and Gov. Quinn signed, an Amendment to the Freedom of Information Act (FOIA) that exempted the exact records sought in the lawsuit.

According to the brief, the circuit court refused to retroactively apply the Amendment and granted an injunction ordering the IDFPR to disclose the records. The Appellate court reversed, holding that, because the Institute for Justice sought injunctive relief, the court must retroactively apply the Amendment.

The brief also argues that this decision threatens the ability to freely engage in newsgathering activities protected by the First Amendment, and places additional barriers for citizens seeking access to public records. It would also make government less accountable and they would have even more incentive to illegally deny legitimate FOIA request because it would be even less likely a person would file a lawsuit to obtain those records.

The full joint brief can be downloaded (here) or read below.

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