(ECWd) –
The Freedom of Information Act (FOIA), is the law outlining people’s rights to public records.
“Sec. 1. Pursuant to the fundamental philosophy of the American constitutional form of government, it is declared to be the public policy of the State of Illinois that all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of this Act.” (emphasis added)
Unfortunately, we are seeing more and more people posting false claims of entitlement to public records on social media, which results in spreading false information that followers believe to be true, and from there the infection of ignorance grows into division and political hatred for their local officials, all based on a false premise of entitlement to a record in the possession of a public body.
Words Matter – “consistent with the terms of this Act”
We see too many people read the first part of the statute above and it’s as if all they understood was “all persons are entitled to full and complete information. Yes, they are, “consistent with the terms of this Act”.
In order to understand FOIA one must first read it, then read it again. In fact, we encourage everyone to take the online FOIA training offered by the Attorney General PAC office on their website. The PAC also has information about the basics of FOIA that we believe, if people read it, would eliminate a lot of social media propaganda regarding one’s “rights” to certain records. Once that self-education is complete they should read the actual AG opinions issued on FOIA which will help to see how the law is applied.
A simple example.
A “draft” document is in the possession of a County Chairman. Is it subject to FOIA?
Social Media Post – “The Chair has no more authority or right to public documents than anyone else. Public included. That “draft” is still subject to FOIA.” (emphasis added)
The person who posted the comment is hidden behind what appears to be an anonymous account, which should be a red flag to most people but all that aside, people read it, and the very next post a person posts “I believe we should all be able to see the draft that was sent..”
We agree with the first sentence of the post in part, which is qualified for those who can read and understand FOIA. Public records (documents) are defined in paragraph (2c) of FOIA. and people have a right to them, “consistent with the terms of this Act”. The last sentence of the post is where one should read the law and stop putting out blanket statements that easily mislead people.
Reading the FOIA sections on exempt records we find the blanket claim that the draft is still subject to FOIA is not that simple.
Exemptions – “5 ILCS 140/7 (f) Preliminary drafts, notes, recommendations, memoranda, and other records in which opinions are expressed, or policies or actions are formulated, except that a specific record or relevant portion of a record shall not be exempt when the record is publicly cited and identified by the head of the public body. The exemption provided in this paragraph (f) extends to all those records of officers and agencies of the General Assembly that pertain to the preparation of legislative documents.”
The PAC has consistently ruled that drafts are exempt from FOIA unless the head of a public body publicly cites and identifies the record in a public meeting. While we understand the law does not say, “in a public meeting“, it’s been the practice of the PAC to apply that interpretation as it relates to “publicly cited and identified”. That being the case, a draft in the possession of the public body is exempt from FOIA unless during a meeting the head of the public body cites that record. Once cited and identified in a public meeting it would be subject to FOIA.
While we could spend hours exposing false beliefs regarding FOIA that are found all over social media, we will close with yet another time-wasting FOIA request we see public bodies getting on a regular basis.
“In accordance with the FOIA, I am requesting to know answers to the following questions”, then they list half a dozen or more questions.
Such a request is not an FOIA request as FOIA pertains to public records, not answering questions.
