Rauner: Stand and deliver on FOIA

Governor remains unresponsive on binding opinion to release FOIA’d emails

 Gov. Rauner’s office has been unresponsive on a binding opinion calling for him to release emails on government appointments. (One Illinois/Ted Cox)

Gov. Rauner’s office has been unresponsive on a binding opinion calling for him to release emails on government appointments. (One Illinois/Ted Cox)

By Ted Cox

The Freedom of Information Act works — except when it doesn’t.

At One Illinois, we’ve had some recent successes on FOIA requests. An inquiry with the state Department of Healthcare and Family Services on House Bill 40, the controversial abortion-rights bill adopted last year, turned up evidence that staffers for Gov. Rauner worked to sink it in the General Assembly before it passed both houses and the governor grudgingly signed it into law.

It also turned up emails from first lady Diana Rauner suggesting that DHFS Director Felicia Norwood was instructed not to be forthcoming on economic-impact statements on the bill, and that Norwood was among the last to know that Rauner was flip-flopping back on his threat to veto it and was going to sign it.

Those are important details for the public to know, and it’s what FOIA was designed to achieve.

But a couple of recent articles from media colleagues we respect serve as a reminder that the current FOIA system is far from perfect.

ProPublica’s Mick Dumke wrote a story last week pointing out that government agencies frequently find ways to deny FOIA requests. The act was strengthened about a decade ago with the creation of a public access counselor to handle appeals on FOIA requests that are denied, but that office has been overtaxed in handling 30,000 appeals.

According to Dumke’s research, “From 2010 through mid-August 2018, the PAC received more than 28,000 requests to review potential violations of the two transparency laws. The vast majority — 93 percent — involved FOIA. [Most of the others involved the Open Meetings Act.] More than 80 percent of the requests came from individual citizens, while the rest came from the media, businesses and other government bodies.

“As of August, the PAC had closed about 26,000 of the cases, and in more than half, it ruled against the requester or closed the case for technical reasons. In contrast, about a third of the cases ended in favor of the citizen or organization seeking information or transparency.”

In those cases, the public access counselor can issue an opinion suggesting that the government body surrender the requested materials, or it can issue a “binding opinion” compelling compliance.

“Binding opinions are rare,” Dumke wrote.

Indeed they are, and they pack an impact. A binding opinion means the offending government body has to sue the attorney general in order to argue against releasing the applicable documents. If the agency simply ignores it, the FOIA requester can file suit — almost certain to win, with the ruling behind it, and with the offending agency on the hook for court costs and legal fees.

A binding opinion is exactly what One Illinois won just over a week ago in another FOIA request with the Governor’s Office.

Beginning in June, One Illinois sought any relevant emails in the Governor’s Office, and involving Diana Rauner, on appointments to state councils, commissions, and boards. The Governor’s Office said that was overly broad and “unduly burdensome.” We narrowed the focus. Rauner’s office said there were no adequate search terms to narrow down the emails, even though FOIA does not require someone to provide search terms for the request.

Eventually, after the Office of the Attorney General got involved, Rauner’s office revealed it had found 44,536 “potentially responsive emails,” and that narrowing the focus with the search term “appoint” had pared that down to 1,783. Even then, it argued it would still be unduly burdensome to process them, and besides they offered little in the public interest.

We’d like to be the judge of that, and the public access counselor agreed, issuing the binding opinion that the Governor’s Office had to turn over those 1,783 emails, but a week later we’re still waiting.

Which brings us to Phil Kadner’s column Wednesday in the Chicago Sun-Times. Kadner, who claims credit for helping to create the public access counselor office, makes a simple demand: “Stop forcing people to battle their own government for access to public records.”

The logic is clear. The public fought for and won the right to create and strengthen FOIA, because public records belong in public view whenever possible. So state officials and agencies should stop resisting FOIA requests as a matter of course and grant the public the access it desires and deserves.

At One Illinois, we couldn’t agree more. So what about those 1,783 emails, governor?