The Journal of The DuPage County Bar Association

Back Issues > Vol. 18 (2005-06)

Citizen Advocacy Center Freedom of Information Act Study
By Terry Pastika, Sarah Klaper, and Reena Desai

Introduction

The Illinois Freedom of Information Act ("Act") grants the public access to "public records" by ensuring that:

"[A]ll 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. Such access is necessary to enable the people to fulfill their duties of discussing public issues fully and freely, making informed political judgments and monitoring government to ensure that it is being conducted in the public interest."1 

In July 2005 The Citizen Advocacy Center ("Center") conducted a survey to assess compliance with the Act and gauge the range of copying fees charged by public bodies in DuPage County. Salaries were chosen as the information to be extracted in the course of the survey since numerous complaints had been received from people who had trouble obtaining that information. The Act mandates disclosure of "the names, salaries, titles, and dates of employment of all employees and officers …"2 

Survey Overview

Under the Act public bodies must comply with or deny written requests not more than seven (7) working days after receipt; failure to respond is tantamount to denial. 3  The Center surveyed DuPage County as well as thirty-eight (38) municipalities and nine (9) townships, requesting:

(1) list of employees;

(2) salaries of those employees; and

(3) identification of copy fees assessed in connection with such requests.

The Center documented whether subjects responded to requests within the required time frame, as well as whether the information provided matched the request. Responses were deemed insufficient if, for example, the subject identified titles instead of employees, or a range instead of actual salaries. If the response was insufficient the Center requested full compliance. If the subject failed to comply the Center deemed the request denied and filed an appeal.

Findings

Copy Fees

While it does not contain a specific mandate, the Act permits a public body to charge only fees "reasonably calculated to reimburse its actual cost..."4  Search costs may not be passed on.5  The actual fees charged to produce standard 8 ½ x 11 output varied widely, often beginning at $2.00 for the first page. For example Bloomingdale, Wayne, Naperville, Bartlett, and Winfield charged less than $.10 per page while Lisle, Addison, and DuPage County charged $.50 or more.

Public Employee Salary Information

Of the forty-eight (48) public bodies surveyed:

(a)72.9% complied immediately providing the requested list of employees and salaries;

(b)20.8% required subsequent contact due to an insufficient response; and

(c)6.3% failed to comply even after subsequent contact.

Of those that responded:

(1) 29 did so within the statutory time limit; while

(2) 5 took more than seven (7) working days to comply.

Analysis

Copy Fees

Bloomingdale charges no fees to provide information, whereas Lisle charges $2.00 for the first page and $0.50 for each additional page. A 50-page document from Lisle would cost $26.50, while the same document would be free from Bloomingdale, and cost only $2.50 from Bartlett, Bloomingdale, Winfield, or Wayne. In short, despite the Act’s requirement of public disclosure, monetary barriers can be used as an indirect, systemic means by which to deny information.

The wide and inconsistent range of copying fees revealed by the data throws these practices into sharp relief.6  To determine whether a subject’s copying charges really do cover actual costs and no more would require an examination of expenses inherent in the acquisition, maintenance, supply, and ownership of the equipment on which copies are made. Because the average citizen lacks the resources to engage in such an analysis, he or she is left with the choice of merely inspecting the records at no charge or paying the fees charged by the public body, regardless of their nature and amount.

Public Employee Salary Information

More than 70% of the public bodies surveyed responded to the Center’s requests. Winfield, Bloomingdale, Villa Park, Wheaton, Lemont, Burr Ridge, and Hinsdale Center responded timely, provided complete information, and, recognizing the public interest nature of the request, waived copy fees entirely.7  These constituted "model" respondents. On the other hand, more than a quarter of respondents required further contact before they would provide specific information; ranging from simply asking for the information again to quoting the Act on the phone to get results. In a few cases the Center was forced to appeal the subject’s failure to respond. This involved providing written notice of the presumptive denial to the head of that public body, to which they had to respond within seven (7) working days (even if that response involved a further denial based on that official’s review of the Act).8 

Overall Impressions

Although the Act clearly states that "[t]he names, salaries, titles, and dates of employment of all employees and officers of public bodies" 9  are public records, some subjects failed to adequately respond. Examples of such official intransigence include, but are not limited to, the following:

(a)Elmhurst, Lombard, Naperville, Roselle, West Chicago, Downers Grove, Addison, Lisle, and Naperville had to be pursued persistently until they revealed specific information. Addison for example initially responded only with employee names and salary ranges: under $15,000, $15,000-$29,999, and above $30,000. Not only was the response uninformative, the data ultimately provided was from May 2004. It was not until the Center appealed to the Township Supervisor that a genuine response was received.

(b)Lisle and Wayne refused to disclose actual salaries, providing only ranges. It was not until the Center released its study to the press that those municipalities complied.

(c)Glendale Heights was not only 16 business days late in responding, but ultimately failed to disclose specific salary information at all.

While the Act requires public bodies to respond to requests within seven (7) working days, it also requires them to notify the requestor about delays and specify a justification for the delay from an enumerated list.10  If the public body requires more time to respond the statute provides for a seven (7) day extension following written notice to the requestor.11  Of the thirty-five (35) public bodies that complied with the Center’s request, twenty-nine (29) responded within the statutory time limit, with the remainder responding outside the statutory deadline, often without citing a specific reason for the delay as required by the Act.

Recommendations for Reform

As James Madison pointed out, "[a] popular government without proper information or the means of acquiring it is but a prologue to a farce or a tragedy – or perhaps both. Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives." While the Center’s study demonstrates that there are public bodies willing to educate the public, more clearly needs to be done.

Currently the only remedy available to one denied access to public information, after exhausting administrative remedies, is to sue for injunctive or declaratory relief – even then there is no more than a possibility of recouping attorney’s fees, making the prospect daunting at best and at worst impossible to afford.12  As for the Act itself, it fails to provide alternative avenues for frustrated citizens or serious penalties for recalcitrant public bodies. In fact, as it stands the Act places a much more significant burden on the requestor than on the public body being asked to comply. With all of the above in mind, the Center offers the following recommendations to public bodies that would remain in compliance with their obligations under the Freedom of Information Act:

(1)Public employees should receive on-going training regarding their obligations under the Act. Several compliance officers with whom the Center spoke were unaware that salaries constituted public records subject to disclosure under the Act.

(2)The Act itself should be revised to provide more guidance as to acceptable fee schedules for copy charges. While the statute may seem explicit, the vast divergence of copy charges demonstrated by the Center’s study points to persistent confusion on this topic.

(3)Alternative enforcement options should be established. For example, the Attorney General recently created the position of Public Compliance Officer to address citizen complaints. While this is a positive first step, that office lacks enforcement powers and can only make recommendations. Meanwhile citizens continue to be frustrated; often choosing to forgo access completely or taking issues to court at great expense. And due to its inherent length, cost, and inefficiency, litigation is often a barrier to action. Giving this new office enforcement powers could effectively level the playing field in this arena.

(4)Technology must be used to provide information at a lower cost to all involved. Several public bodies responded to the Center’s requests via e-mail or facsimile. Such electronic delivery is often the fastest way to disburse information at the lowest all-around cost. Likewise, public bodies should be required to make public records available online. By posting frequently requested records on their website public bodies should be able to dramatically reduce the number of requests filed under the Act.

Conclusions

The Freedom of Information Act serves to increase accessibility of government documents to the public, and is a useful tool for citizens to become involved in government affairs. Local governments and their constituents must work together in order to create an efficient mode of governance and to maximize the benefits of a democracy. Public bodies jeopardize the people’s role in that democracy by placing limits on the right to access public information through baseless denials and excessive copying costs that effectively limit access.

Public bodies that charge a nominal fee for copies and promptly and adequately provide requested public information further the state legislature’s intent in passing the Freedom of Information Act to "enable the people to fulfill their duties of discussing public issues fully and freely, making informed political judgments and monitoring government to ensure that it is being conducted in the public interest."13 

The business of government is actually the people’s business. However, in order to have a healthy democracy, effective mechanisms must be in place that truly allows for accessibility. The Freedom of Information Act is an essential tool enabling public access, but in order to serve its intended purpose, the citizenry and people who are responsible for implementing it must be fully informed as to how to comply with its mandates.

 1 5 ILCS 140/1, P.A. 83-1013, § 1.1, eff. July 1, 1984. Amended by P.A. 86-1475, Art. 4, § 4-84, eff. Jan. 10, 1991. See also

 2 5 ILCS 140/2 (c)(viii). See also 2005 IL H.B. 483 (NS) (Apr 15, 2005) (Amended); 2005 IL H.B. 483 (NS) (Jan 27, 2005) (Amended).

 3 5 ILCS 140/3 (c), P.A. 83-1013, § 3, eff. July 1, 1984. Amended by P.A. 90-206, § 5, eff. July 25, 1997. See also 2005 IL H.B. 152 (NS) (Jan 12, 2005) (Amended).

 4 5 ILCS 140/6 (emphasis added), P.A. 83-1013, § 6, eff. July 1, 1984. Amended by P.A. 85-1357, § 1, eff. Jan. 1, 1989; P.A. 90-144, § 7, eff. July 23, 1997. See also 2005 IL H.B. 5449 (NS) (Jan 27, 2006) (Amended), 2005 IL H.B. 5072 (NS) (Jan 24, 2006) (Amended), 2005 IL H.B. 3796 (NS) (Feb 25, 2005) (Amended), 2005 IL H.B. 2967 (NS) (Feb 22, 2005) (Amended), 2005 IL S.B. 588 (NS) (Feb 18, 2005) (Amended), 2005 IL H.B. 1639 (NS) (Feb 16, 2005) (Amended), 2005 IL H.B. 2260 (NS) (Feb 16, 2005) (Amended), 2005 IL H.B. 2261 (NS) (Feb 16, 2005) (Amended), 2005 IL H.B. 2326 (NS) (Feb 16, 2005) (Amended), 2005 IL H.B. 812 (NS) (Feb 02, 2005) (Amended), 2005 IL H.B. 624 (NS) (Jan 31, 2005) (Amended).

 5 5 ILCS 140/6, P.A. 83-1013, § 6, eff. July 1, 1984. Amended by P.A. 85-1357, § 1, eff. Jan. 1, 1989; P.A. 90-144, § 7, eff. July 23, 1997.

 6 Id.

 7 5 ILCS 140/6 (b) The Freedom of Information Act mandates that documents shall be furnished without charge or at a reduced charge, as determined by the public body, if the person requesting the documents states the specific purpose for the request and indicates that a waiver or reduction of the fee is in the public interest. Waiver or reduction of the fee is in the public interest if the principal purpose of the request is to access and disseminate information regarding the health, safety and welfare or the legal rights of the general public and is not for the principal purpose of personal or commercial benefit.

 8 5 ILCS 140/10(a)

 9 5 ILCS 140/2

 10 5 ILCS 140/3

 11 5 ILCS 140/3

 12 5 ILCS 140/10-11

 13 5 ILCS 140/1

The Citizen Advocacy Center is a non-profit, non-partisan community based legal organization dedicated to building democracy for the 21st Century. The Center also assists individuals and community groups participate in public affairs by teaching members how to use public access laws, organize the community, and advocate for a cause. The Center also regularly monitors local governments to ensure compliance with the law and assist in the development of policies and practices that encourage citizen participation. Copies of the Center’s study can be obtained at 238 N. York Road, Elmhurst, Illinois, or online by navigating to www.citizenadvocacycenter.org. For more information about this study or other services and activities of the Center, or to become a volunteer, please call (630)833-4080 or email cac@citizenadvocacycenter.org.

Terry Pastika, Executive Director

Sarah Klaper, Community Lawyer

Reena Desai, Legal Intern


 
 
DCBA Brief