People count on the Freedom of Information Act but keep getting shut out
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When Larry Young started requesting records from police, he just wanted to find out what had happened to his daughter, Molly.
More than six years after the 21-year-old was found shot to death in her ex-boyfriend’s apartment in downstate Carbondale, Young is still fighting law enforcement agencies for records under the Illinois Freedom of Information Act, or FOIA.
Young’s battle has become a long, often painful example of both the promise and weakness of government-transparency laws in Illinois, including an overwhelmed and inconsistent enforcement system overseen by outgoing Attorney General Lisa Madigan.
Police and other government agencies have offered a series of reasons why Young can’t see certain records from the investigations into Molly’s death. At times they’ve claimed the information should remain under wraps to protect the privacy of his daughter, even though she’s dead and he’s the executor of her estate. On other occasions they’ve simply ignored his requests and disregarded four different rulings from the attorney general’s office.
In 2009, Madigan and state legislators crafted a new law they promised would help citizens like Young by improving access to government records and proceedings. Under one of its key provisions, the attorney general’s office was given authority to interpret and enforce the state Freedom of Information and Open Meetings acts. Since then, thousands of citizens, mostly individuals but also journalists and businesses, have appealed for help from the office’s public access counselor, known as the PAC. As she prepares to leave office after 16 years, Madigan has touted her work in promoting transparency as one of her signature achievements.
Often, though, the public still gets shut out. Government bodies around the state routinely ignore or misinterpret the FOIA and OMA, according to a ProPublica Illinois analysis of the nearly 30,000 appeals the PAC has received.
The PAC’s staff of more than a dozen attorneys struggles to wade through the cases, regularly taking months or even years to resolve them. When it does rule, it seldom uses its full authority to order government agencies to comply with the laws. And in the rare cases when it does, the office’s orders are sometimes blown off. Violators face few consequences.
A number of people who turned to Madigan’s office for help say it is too slow, cautious and unpredictable. That sends the message that public agencies can get away with breaking the transparency laws.
“Here’s what they need to do: Pull the plug on the PAC’s office,” said Bruce Rushton, a staff writer for the Illinois Times newspaper who has written about delays and inaction from the office. Rushton argued that the attorney general’s office is too politicized to oversee disputes involving other politicians and government bodies, including state agencies it’s charged with representing in court.
“Only a fool would put an elected official in Illinois in charge of riding herd on other elected officials,” Rushton said. “But that’s what we’ve done.”
AG’s chief of staff: ‘We really do help people’
Madigan was not available for an interview, according to a spokeswoman. But other officials in her office said the PAC has helped thousands of people access government information while leading a shift in the culture of the state toward more transparency.
“We started from scratch and created this, and I think we really do help people every day,” said Ann Spillane, the attorney general’s chief of staff.
“We have areas where we need to improve,” she acknowledged. But in addition to its rulings, Spillane stressed that the office provides education to the public on open-government laws, including through a hotline. “We’re one of the rare places in government where you can pick up the phone and talk to a lawyer.”
Spillane added that the office could be more efficient if compliance with the open-government laws was a higher priority for officials around the state, starting with the governor.
“Since I’ve been around, we’ve never had a governor who directed their staff at all levels to comply with FOIA,” she said.
The Freedom of Information Act promises that “all persons are entitled to full and complete information regarding the affairs of government.” Under FOIA, citizens are allowed to request and obtain copies of records generated by local and state government agencies. Journalists and watchdog groups make regular FOIA requests, but so do law firms, nonprofits and everyday residents who want or need information.
But the law has limits that are not always defined clearly. Personal or private information, such as Social Security and phone numbers, are exempt. So are records that would interfere with a pending law enforcement investigation, reveal terrorism prevention plans or disclose trade secrets.
If a government body rejects a FOIA request — or doesn’t respond within five business days — the requester can ask the public access counselor to review the case. Eventually, it may issue a ruling — either a “determination,” which is advisory, or a “binding opinion,” which orders a resolution, usually in favor of the requester.
Similarly, citizens can ask the PAC to review whether government bodies have violated the Open Meetings Act, which mandates that public business be conducted in the open except in certain circumstances, such as disciplinary proceedings for employees.
Open-government laws, and enforcement of them, vary widely by state. In some, citizens can only appeal FOIA denials to officials at the same public agencies that rejected their requests in the first place. In other states, separate offices or committees hear appeals and have the authority to order remedies. Ideally, such offices would be separate from other government agencies and free from interference from elected officials, advocates for transparency say.
“I think it’s incredibly important for the body or entity deciding these administrative appeals to be independent in as many ways as possible,” said Adam Marshall, a staff attorney for the Reporters Committee for Freedom of the Press. “Part of the reason we have a separate branch of government for the judiciary is the appeals process.”
Such enforcement entities should also have adequate resources. “You can have a totally independent body, but if you starve them by limiting their budgets, they won’t be able to do their work,” he said.
Critics of the system in Illinois say it suffers from both problems.
Sarah Pratt, who has served as the public access counselor since 2013, said the office’s decisions are never based on politics but on the law.
“Frankly, I’ve never, in more than 25 years in this office, and certainly not in the last eight years, done anything or been advised to do anything for political reasons,” she said. “As far as us choosing opinions to write based on politics, it just doesn’t happen.”
28,000 requests, 93 percent involving FOIA
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. 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 one-third of the cases ended in favor of the citizen or organization seeking information or transparency.
In 38 percent of the cases, the PAC ruled against the requester, concluding the public body had acted properly in its response to FOIA or application of OMA.
An additional 18 percent of cases were closed because the PAC determined they didn’t comply with the rules for requesting a review — they weren’t filed within the 60-day deadline, for example.
In 9 percent of the cases, the request for review was withdrawn or the requester filed a lawsuit instead of waiting for an opinion.
In 28 percent, the cases were resolved or advanced without a formal ruling, usually because the public body responded when the PAC got involved.
The PAC issued formal opinions finding violations of FOIA or OMA in just 7 percent of cases.
While most FOIA and OMA reviews were closed within two months, more than 3,800 took the PAC longer than a year to resolve, including about 500 that went on for more than four years.
John O’Connor, a reporter for The Associated Press, had the longest wait before the PAC took action in a FOIA dispute: 7 1/2 years.
In 2011, O’Connor asked the Illinois Department of Human Services for records showing who was hired through former Gov. Rod Blagojevich’s Summer Youth Works initiative. The department refused, claiming the information was confidential and exempt. O’Connor appealed to the PAC. On July 31, 2018, the PAC finally issued a opinion: Since records about the use of public money are public, the department should release the names of the participants in the program.
But the opinion was non-binding, which essentially left it up to the department to decide whether to comply. As of this past week, O’Connor still hadn’t received the records he requested.
“We started with a backlog because of the onslaught we got from the start,” said Spillane, the attorney general’s chief of staff. “We are very conscious of the fact that we have to get faster. We have to do a better job of triage upfront.”
The PAC’s heavy caseload is one reason the office rarely uses its full authority to order compliance with the transparency acts. Under the laws, the PAC has 60 days to issue a binding opinion. If the case is too complicated to make that deadline, or if the PAC’s attorneys aren’t able to move faster, the most the office can do is issue an opinion that’s non-binding.
And binding opinions are rare. While closing 26,000 cases through mid-August, the PAC only used the weight of the law to issue binding opinions in 127 of them — less than half of 1 percent of the total. And four of those opinions sided with government bodies blocking the public from information.
Officials in the attorney general’s office said they issue binding opinions on issues of broad public interest, and each one is researched to ensure it could withstand a court challenge.
“Our binding opinions in particular we’ve been exceedingly careful about,” Spillane said. “We’ve only been overturned once. We thought it would be a devastating blow to our credibility if we didn’t have success with the courts.”
The media and the PAC
Spillane and Pratt said opinions aren’t driven by who makes the request. But the ProPublica Illinois review found the PAC tends to weigh in most strongly on cases involving members of the media. Individual journalists and news organizations were involved in less than 10 percent of all the cases appealed to the PAC but almost half of those resolved with a binding opinion.
The PAC also uses binding opinions to resolve some of the most obvious violations of the transparency laws — a sign that the office often goes after low-hanging fruit, but also that government bodies around Illinois routinely ignore or misinterpret even basic open-government rules. For example, the most common violation the PAC found in its binding opinions was that agencies simply didn’t respond to a FOIA request within five business days, if they responded at all.
Spillane said the office has “struggled” to decide the best way to deal with public agencies that ignore requests or PAC opinions, opting in most cases for the “ask again and again and again” approach. But the office has started to respond more forcefully with binding opinions, she said.
“It will be something the bureau does more going forward,” she said.
The PAC’s first binding opinion, in 2010, centered on basic obligations of public bodies to provide records under FOIA, and it illustrated the absurd arguments some use to thwart FOIA requesters.
Edward Fleck, a former village trustee in Wapella, a small community south of Bloomington, filed a FOIA with the village government for copies of his own water meter readings. The village denied his request, telling Fleck that he could come to the village hall to look at the documents but that it wouldn’t provide him with copies.
Fleck said the denial was part of a deliberate attempt by the village leadership at the time to keep him and other residents from getting information about its spending and operations. In response, he and a couple other residents joined forces to submit hundreds of FOIAs.
“At one point they got a new copier, but we could not get how much it cost,” Fleck said.
So he submitted a FOIA request for a copy of the instruction manual.
“For a while we were required to go up to the village board, and we had an hour to go through records, and they might not be the records we asked for,” he said. On other occasions, he was allowed to use the copier, but only with yellow paper that made the records hard to read.
Fleck appealed to the PAC, which ruled that the village violated FOIA by not providing copies of public records and must begin to do so.
Even then, Fleck said, it was “several months” before he received copies of his water meter readings. Eventually, he and other residents met with village officials in the public access counselor’s office in Springfield, and over time the information-sharing process improved. But Fleck felt the PAC could have been more aggressive in enforcing the laws.
“Generally, if someone is making a FOIA request there’s a legitimate reason for it,” he said. “Springfield needs to take little towns and individuals more seriously than they do. We don’t have lawyers pleading our case. We do it ourselves.”
Breaking the law behind closed doors
Though fewer than 10 percent of appeals to the PAC involved the Open Meetings Act, more than 20 percent of its binding opinions did. The cases show how government agencies repeatedly break the law in meeting behind closed doors.
In summer 2017, Pastor Marvin Hightower asked the PAC to determine whether the village board in Mapleton, a small town outside of Peoria, had violated the act when it went into closed session to discuss offensive comments by a trustee.
At a meeting earlier in the year, the trustee shared her view that “we have too many colored people coming into town” to play basketball at a local community center, according to the Peoria Journal Star.
As president of the Peoria branch of the NAACP, Hightower heard about the remarks and decided to go to the next board meeting, when other trustees put an item on the agenda to address the issue.
“With everything at the time that was going on in the country, we felt we couldn’t let that continue and fester here,” Hightower said.
After the board went behind closed doors to discuss the trustee’s comments, Hightower notified the PAC. It agreed that the Mapleton village board had violated the Open Meetings Act and ordered the trustees to comply with the law in the future. At the PAC’s direction, the board also provided a recording of its closed session to Hightower.
Some states don’t have any enforcement or appeals system at all, and the lone option for citizens seeking redress for denied records or closed meetings is to file a lawsuit.
Even with the PAC in place, that’s an approach favored by many reporters, activists and lawyers in Illinois, who say they can’t count on the attorney general’s office to deliver timely opinions. They point to the fight to get the city of Chicago to produce records related to the 2014 shooting of teenager Laquan McDonald by Police Officer Jason Van Dyke. Video of the shooting was only released after FOIA requesters went to court; the video eventually led to Van Dyke’s conviction for second-degree murder and aggravated battery.
Candidates to replace Madigan, who is not running for re-election in November after four terms, said the office needs to step up enforcement. Both Republican Erika Harold and Democrat Kwame Raoul, who as a state senator helped write the law, has promised to press the General Assembly for more money to add staff for the public access counselor’s work.
Larry Young’s quest for public records in daughter’s death
As Larry Young discovered, enforcement of the transparency laws, including the PAC’s decisions about when to use the weight of its authority with binding opinions or even subpoenas, can have serious consequences.
Around noon on March 24, 2012, Young got word that Molly had been found dead three hours earlier in her ex-boyfriend’s apartment in Carbondale, about 20 miles from Young’s home in Johnston City. He hurried to the Carbondale police station.
“I said, ‘I want to know the who, what, where, when and why,’” Young recalled. “I was mad and in shock.”
But no Carbondale officers would brief him on what had happened, he said. The Illinois State Police had been called in because Molly’s ex-boyfriend was a Carbondale police dispatcher, creating a potential conflict for the local investigators, but the state authorities wouldn’t tell Young much either. No one was ever charged.
Over the next year, Young said, state and local police refused to share information about the case with him or other family members. He often learned details of the investigation from news stories. In February 2013, the Carbondale Times reported that the ex-boyfriend initially described Molly’s death as an overdose in a 911 call the morning of the incident, then told a dispatcher — someone he worked with — that she had committed suicide.
In April 2013, the Times reported that state police still considered their investigation open. That’s when Young, who said he had never filed an open records request, started using FOIA to seek information.
“I didn’t know how to write them,” he said. “I didn’t know anything about them.”
Young emailed the FOIA officer for the state police, seeking an update on the investigation.
“I have not been allowed to see any written police reports requested about my daughter’s suspicious death,” he wrote. “lf the investigation is ongoing please inform me as to what is going on to erase all doubt that this is not the code of silence in effect.”
The FOIA officer interpreted Young’s message as a formal request under the law. In May 2013, the state police provided some information, but it was “heavily redacted,” Young said. The blacked out material even included half of a letter Young himself had written.
And the police still wouldn’t give Young an autopsy report, his daughter’s journals or a number of other records. So in January 2014, he sent another round of FOIA requests to state and Carbondale police, seeking investigative reports and video and audio recordings pertaining to Molly’s death.
Both the Carbondale and state police responded that they had already provided everything the previous year, even though they hadn’t.
Young appealed to the PAC. The back-and-forth dragged on for more than a year as the police departments offered shifting arguments for not releasing all the records.
It was June 2015 before the PAC formally sided with Young, noting that his daughter’s privacy didn’t need to be protected since she had died and he was in charge of her estate.
The state police were “directed” to provide the records to Young. But the ruling added that “the Public Access Counselor has determined that resolution of this matter does not require the issuance of a binding opinion.”
The PAC issued a similar non-binding opinion for the dispute with the Carbondale police. But it wasn’t able to issue a stronger order, and Carbondale officials knew it. As a city attorney noted in a July 2015 letter, the PAC had missed its 60-day window for a binding opinion.
A non-binding opinion, Young said, “isn’t worth the paper it’s printed on.” The police refused to produce all the records from his daughter’s case. Young said he doesn’t understand why the PAC didn’t use its subpoena power to force the police to comply with the law.
Young sent his next FOIA to the state police in August 2015, seeking all the records related to his daughter’s death, including, specifically, crime scene and autopsy photographs. Once again the state police refused to provide him with everything, and once again he appealed to the PAC.
Finally, after another round of requests, the PAC issued a binding opinion in February 2016 that reiterated the points it had made in previous rulings. The state police were ordered to provide Young with copies of the photographs, and it did.
Later that year, the legislature passed an amendment to the Freedom of Information Act that increased potential court-imposed fines for agencies that don’t comply. Sparked by Young’s fight with police, the measure was called Molly’s Law and was signed by Gov. Bruce Rauner during a July ceremony with Young and others, clad in green Justice for Molly T-shirts, in attendance.
Young is not done; he still wants the records from the phones of his daughter and her ex-boyfriend. In another non-binding ruling last year, the PAC concluded he had the right to them, but the state police say they can’t locate those records.
Young hopes the disclosures he has wrestled from police will lead to a re-examination of Molly’s death.
“The purpose of the FOIAs is to find the truth,” he said. Without FOIA requests, “It all would’ve been swept under the rug.”
Mick Dumke, a former Chicago Sun-Times reporter, is a reporter for ProPublica Illinois.