The New Freedom of Information Act (P.A.

96-542)
Phillip Lenzini, Peoria
Effective January 1, 2010, Illinois has installed a major revision to the Freedom of
Information ct, found at ! IL"# 1$0%1 et seq. &nder this la', pu(lic records are presumed to
(e open and accessi(le to the pu(lic and #ection 1 of the revised ct no' e)pressly declares that
it is the pu(lic policy of Illinois that access (y all persons *note, no limitation to Illinoisans,
mericans or even le+al aliens, to pu(lic records promotes -transparency and accounta(ility of
pu(lic (odies. and that it is -a fundamental o(li+ation of +overnment to operate openly and
provide pu(lic records as e)pediently and efficiently as possi(le/.
lthou+h #ection 1 reco+nizes the ct -imposes fiscal o(li+ations on pu(lic (odies to
provide ade0uate staff and e0uipment to comply 'ith its re0uirements,. it declares that providin+
records is a -primary duty of pu(lic (odies1fiscal o(li+ations not'ithstandin+/. In other 'ords,
P// 234!$2 has ta5en 'hat 'as the lar+est unfunded mandate in Illinois history and dramatically
increased (oth the mandate and the compliance costs to pu(lic (odies and their ta)payers,
'ithout hesitation and in spite of such costs/ 6his article 'ill discuss the ne' re0uirements alon+
'ith those that continue from e)istin+ la'/
Reqirement! for a"" #$"ic $odie!.
It is fre0uently misunderstood that the F7I la' only applies 'hen someone ma5es a
re0uest for a pu(lic record/ 6he truth is that F7I has several re0uirements for pu(lic (odies
'hether they ever receive a re0uest for records or not/ 8e (e+in 'ith those universal
compliance re0uirements, 'hich have also (een e)panded +reatly (y P// 234!$2/
Every pu(lic (ody in Illinois is *and 'as, re0uired to -prominently display. at each of its
offices, and ma5e availa(le to the pu(lic, a -(rief description of the pu(lic (ody, 'hich 'ill
include, (ut not (e limited to, a short summary of its purpose, a (loc5 dia+ram +ivin+ its
functional su(divisions, the total amount of its operatin+ (ud+et, the num(er and location of its
separate offices, the appro)imate num(er of full and part4time employees, and the identification
and mem(ership of any (oard, commission, committee, or council 'hich operates in an advisory
capacity1or 'hich e)ercises control1or to 'hich the pu(lic (ody is re0uired to report1/.
91$0%$*a,:
In addition, every pu(lic (ody must include a (rief description of methods 'here(y the
pu(lic may re0uest information and records, and, as a ne' addition, it must include a directory
desi+natin+ the F7I officer or officers, the address 'here re0uests are to (e directed, and any
fees allo'a(le under the ct/ 91$0%$*(,: lso, as a ne' re0uirement, P// 234!$2 adds that if the
pu(lic (ody maintains a 'e(site, all of this information must (e posted there/ 91$0%$*c,:
lthou+h F7I does not directly re0uire a pu(lic (ody to promul+ate or adopt a specific
'ritten policy to comply 'ith it, almost all pu(lic (odies in fact prepare and adopt a policy,
ordinance or resolution as the (est practice in order to comply 'ith these re0uirements/
The new mandate for Freedom of Information %fficer(!).
Perhaps the most e)pensive and imposin+ mandate on all pu(lic (odies, particularly the
smaller ones, 'hether they ever receive a F7I re0uest or not, is the ne' re0uirement that each
(ody must desi+nate one or more -officials or employees to act as its Freedom of Information
officer or officers/. 91$0%;/!: In +eneral, the purpose of the F7I officer is to receive the F7I
re0uests, ensure that the re0uests are responded to in a timely fashion, issue responses, and the
officer*s, must develop a list of documents or cate+ories of documents that 'ill (e -immediately
disclose upon re0uest/. 91$0%;/!:
<efore turnin+ to their duties IF a F7I re0uest is ever filed, and addressin+ the
re0uirements for all pu(lic (odies 'hether a re0uest is ever made or not, the F7I desi+nated
2
officer*s, are re0uired, prior to July 1, 2010, to under+o an -electronic trainin+ curriculum. to (e
developed (y the Pu(lic ccess "ounselor/ 6hey must -successfully complete. the trainin+ as a
prere0uisite to servin+ as a F7I officer/ Further, they must successfully complete the electronic
trainin+ curriculum annually thereafter or if ne'ly desi+nated, they must do so 'ithin ;0 days of
assumin+ the position/ 91$0%;/!*(,:
6he further specific duties of F7I officer*s, upon receipt of a F7I re0uest are=
1/ to note the date the pu(lic (ody receives the re0uest>
2/ to compute the day on 'hich the time to respond e)pires, and note that on the re0uest>
;/ to maintain an electronic or paper copy of the re0uest and all documents su(mitted
'ith it, until complied 'ith or denied> and
$/ to create a file for retention of the ori+inal re0uest, a copy of the response, and a
record of all 'ritten communications 'ith the re0uester and copies thereof/
&han'e! in the definition of (#$"ic record!.)
For some time, the definition of 'hat constitutes -pu(lic records. in Illinois for purposes
of F7I has (een 0uite e)pansive/ 6his is particularly trou(lesome in Illinois +iven the interface
of F7I 'ith the provisions of (oth the Local ?ecords ct 9!0 IL"# 20!%1 et seq.: and the #tate
?ecords ct 9! IL"# 130%1 et seq.: 'hich contain some'hat different definitions of the term 9!0
IL"# 20!%; and ! IL"# 130%2:, and perhaps more importantly, contain various provisions
re+ardin+ the stora+e, preservation, and destruction of -pu(lic records/.
P// 234!$2 alters the F7I definition of -pu(lic records. in t'o important 'ays= First,
in the definition itself, the term -electronic communications. is specifically added, (ut more
e)pansively, the definition also includes -all other documentary materials pertainin+ to the
transaction of pu(lic (usiness, re+ardless of physical form or characteristics. and that are
;
prepared (y or for the (ody, have (een used or are (ein+ used (y, received (y, or in the
possession or control of any pu(lic (ody/ 91$0%2*c,:/ #econdly, a pu(lic record that is not in the
possession of the pu(lic (ody, (ut is in the possession of a party 'ith 'hich the a+ency has
contracted to perform a -+overnmental function. that relates directly to the +overnmental
function and is not other'ise e)empt, is no' a -pu(lic record. of that pu(lic (ody, su(ject to
disclosure/ 91$0%@*2,:
&han'e! in e*em#tion! from di!c"o!re.
lthou+h the scope of this article does not allo' for an e)tended discussion of the $;
enumerated e)emptions, or the thousands of permutations and applications of those e)emption
classifications to myriad circumstances, 'e 'ill hi+hli+ht the chan+es in e)emptions that are
occurrin+ and a fe' of the more universal issues or provisions/
Perhaps the most noticea(le chan+e in F7I e)emptions made (y P// 234!$2, is the
reor+anization of those e)emptions into t'o separate sections= #ection @ 'hich some'hat
parallels the old list> and #ection @/! 'hich is essentially a ne' cate+ory of e)emptions called
-#tatutory E)emptions. thou+h it includes many of the stated e)emptions that had (een
ori+inally included in old section @/ #ection @/! is an attempt to list e)emptions to disclosure
found in other statutory provisions such as the Li(rary ?ecords "onfidentiality ct 9@! IL"#
@0%1:/ In other 'ords, most of the 12 listed statutory e)emptions in section @/! are similar
provisions, or at least reference the same statutes as under the F7I e)istin+ prior to January 1,
2010/ For instance the second one listed in section @/! is= -Li(rary circulation and order records
identifyin+ li(rary users 'ith specific materials under the Li(rary ?ecords "onfidentiality ct/.
91$0%@/!*(,: 6his is very close to the pre4e)istin+ provision of F7I 'hich stated= -Li(rary
circulation and order records identifyin+ li(rary users 'ith specific materials/. 91$0%@*l,:
$
Ao'ever, not all statutory e)emptions listed in #ection @/! 'ere previously sin+led out/
n important e)ample of such is section @/!*r,, 'here -information prohi(ited from (ein+
disclosed (y the Illinois #chool #tudent ?ecords ct. is no' e)pressly e)empted/ 91$0%@/!*r,:
6he #chool #tudent ?ecords ct 'as not previously listed as an e)emption, thou+h it 'as
usually understood as e)empt under the +eneral lan+ua+e of the precedin+ section, #ection @*1,
*a, 'hich e)empts -information specifically prohi(ited from disclosure (y federal or #tate
la'1/. 91$0%@*1,*a,:
lthou+h each of the 12 e)emptions under second @/! are important in their respective
spheres, (ecause of the +eneral application of some of the provisions, mention is made here of
section @/!*0, 'hich e)empts= -Information prohi(ited from (ein+ disclosed (y the Personnel
?ecords ?evie' ct. *referrin+ to B20 IL"# $0, 91$0%@/!*0,:> and section @/!*h, 'hich e)empts
information e)empted from disclosure under the #tate 7fficials and Employees Ethics ct
*referrin+ to ! IL"# $;0%141 et seq., 91$0%@/!*h,:> and section @/!*f, 'hich e)empts= -Firm
performance evaluations under #ection !! of the rchitectural, En+ineerin+, and Land #urveyin+
Cualifications <ased #election ct/. *referrin+ to ;0 IL"# !;!%!!, 91$0%@/!*f,:
Non-!tattor+ e*em#tion! nder F%IA.
6urnin+ to section @ of the ne' F7I, 'hich lists the 2$ sections of e)emptions effective
January 1, 2010, it must (e said at the outset of any discussion of these e)emptions, that section
@*1, *formerly found at ! IL"# 1$0%B, 'hich 'as entirely deleted (y P// 234!$2, e)pressly
states that any re0uested pu(lic record that contains information e)empt from disclosure under
section @, (ut also contains information that is not e)empt, must (e redacted (y the pu(lic (ody
of the e)empt information, (ut other'ise made availa(le for inspection and copyin+/ 6his rule,
preserved from the -old. F7I (ut 'ith ne' e)emption lan+ua+e to consider, accounts for a
!
hu+e share of the increased costs of F7I compliance, (oth in staff time and attorney
consultation if not more/ 8hat the Deneral ssem(ly and the ttorney Deneral continue to fail
to realize is that each e)emption narro'ed, or re'ritten or altered, dramatically increases
compliance costs to local +overnments and their ta)payers, even 'hen their true +oal is actual
compliance/ "ompared to the federal +overnment F7I, 'hich has only a handful of
e)emptions, (ut 'hich are (roadly 'ritten and easy to apply, the -narro' approach. continued
(y Illinois is mis+uided to say the least, and terri(ly costly to ta)payers at (est/
Perhaps the first listed e)emption in section @ is the most important, (ecause it e)empts
from disclosure= -Information specifically prohi(ited from disclosure (y federal or #tate la' or
rules and re+ulations implementin+ federal or #tate la'/. 91$0%@*1,*a,: lthou+h many of the 2$
listed cate+ories under P// 234!$2 are similar to e)istin+ e)emption provisions of F7I, there
are some 'ith si+nificant chan+es/ For instance, all of the e)emption provisions that the
#upreme "ourt and Illinois ppellate "ourt had determined 'ere -per se. e)emptions *meanin+
documents or records 'ithin those -per se. cate+ories did not re0uire a court e)amination or
inspection (ecause the le+islature had already determined they 'ere e)empt cate+ories, have
(een deleted/ In place of the -per se. cate+ories, three concepts are essentially su(stituted/
6he first such -concept. is referred to as an -un'arranted invasion of personal privacy/.
Eot'ithstandin+ the claim that this phrase is am(i+uous, very su(jective, impossi(le to apply in
a -real 'orld. settin+ and destined to lead to a lot of liti+ation, P// 234!$2 attempts a
-definition. as -disclosure of information that is hi+hly personal or o(jectiona(le to a reasona(le
person and in 'hich the su(jectFs ri+ht to privacy out'ei+hs any le+itimate pu(lic interest in
o(tainin+ the information/. 91$0%@*1,*c,: "omplicatin+ this concept is the sentence immediately
succeedin+ the 0uoted lan+ua+e that reads= -6he disclosure of information that (ears on the
3
pu(lic duties of pu(lic employees and officials shall not (e considered an invasion of personal
privacy/. 91$0%@*1,*c,: 6his sentence is to limit the application of the e)emption/
6he second -concept. is -personal information. (ut this term must (e read and
understood in relationship 'ith the -un'arranted invasion of personal privacy. clause/ 6his is
(ecause -personal information,. to the e)tent it may (e included 'ithin pu(lic records, if it
constitutes a -clearly un'arranted invasion of personal privacy. is e)empt from disclosure,
unless disclosure is consented to in 'ritin+ (y the su(ject of the information/ 91$0%@*1,*c,:
-Personal information. is not defined in P// 234!$2 or F7I and therefore 'e are left to
some'hat +uess at its meanin+ or the scope of the term/
1
Presuma(ly it may include some
information (eyond the defined term -private information. *see (elo', (ut it may (e somethin+
less than the information contained in the former, -per se. e)empt cate+ory of personnel file/
6he a(sence of a definition, at least until courts have ruled on the issue and +iven some +uidance
as to meanin+, 'ill simply perple) pu(lic (odies and their F7I 7fficer*s, 'ho 'ill (e called
upon to interpret, respond and apply the term in the interim/
6he third -concept. introduced in the ne' F7I is the term -Private information. 'hich
is defined as= -uni0ue identifiers, includin+ a personFs social security num(er, driverFs license
num(er, employee identification num(er, (iometric identifiers, personal financial information,
pass'ords or other access codes, medical records, home or personal telephone num(ers, and
personal email addresses/ Private information also includes home address and personal license
plates, e)cept as other'ise provided (y la' or 'hen compiled 'ithout possi(ility of attri(ution
to any person/. 91$0%2*c4!,: #uch -private information. is e)empt from disclosure -unless
1
lthou+h neither F7I nor P// 234!$2 define the term, the Illinois #upreme "ourt, in Lieber v. Bd. Of Trustees of
S .Ill .Univ. ,1@3 Ill/2d $01, 3B0 E/E/2d ;@$ *122@, did address the term as it 'as then used in the ct and concluded
that it did not include -(asic identification. li5e names and addresses/ 93B0 E/E/2d at ;@2:/ Ao'ever, P// 234!$2
has no' created the term -private information. and included 'ithin that definition, at least to some e)tent, home
addresses/ "ontinued via(ility of Liebers vie' +iven the later le+islative acts is an open 0uestion/
@
disclosure is re0uired (y another provision. of F7I, a #tate or Federal la' or a court order/
91$0%@*1,*(,:
,i!ted e*em#tion! from di!c"o!re.
In addition to these ne' concepts, there are listed the (alance of the 2$ e)emptions, many
of 'hich are similar to e)istin+ e)emptions under F7I/ Gost of them have had some minimal
lan+ua+e modifications, presuma(ly to clarify the scope of the intended e)emptions/ <ut most of
the chan+es, rather than addin+ clarity, appear to complicate and%or add cost to the
implementation, and surely tend to narro' the scope of the e)emptions in favor of fuller
disclosure/
Gany of the prior specified e)emptions continue to e)ist and 'ill not (e summarized
here, thou+h e)emption -j. dealin+ 'ith educational matters and in particular testin+ has (een
su(stantially re'ritten in respects (eyond testin+, includin+ evaluation materials for faculty
mem(ers, course materials or research materials used (y faculty materials, as 'ell as materials
used for adjudication of student disciplinary matters, 'hich previously 'ere individually listed
sections/ 91$0%@*1,*j,:
Finally, of note is the ne'ly 'orded section -n. that e)empts -records relatin+ to a pu(lic
(odyFs adjudication of employee +rievances or disciplinary cases. (ut, the e)emption does not
e)tend to -the final outcome of cases in 'hich discipline is imposed/. 91$0%@*1,*n,: lso the
e)emption for communications (et'een the pu(lic (ody and attorney or auditor is unchan+ed
e)cept for renum(erin+ to 1$0%@*1,*m,/
&ritica" con!ideration! re"atin' to e*em#tion! from di!c"o!re.
Eo discussion of F7I e)emptions 'ould (e complete 'ithout mention of three
si+nificant chan+es relatin+ to e)emptions and their applications/ First, P// 234!$2 e)pressly
B
states that there is a presumption in respect to all pu(lic records that they are to (e open for
inspection and copyin+/ 91$0%1/2: #econd, any assertion (y a pu(lic (ody that a record is e)empt
from disclosure must (e sho'n (y 'hat la'yers call a (urden of proof 5no'n as -clear and
convincin+ evidence/. <asically that means the pu(lic (ody must sho' that the records sou+ht
clearly fall 'ithin the narro' readin+ of the e)emption and that a reasona(le person 'ould (e
convinced that interpretation or application/
6hird, P// 234!$2 re0uires that if either the e)emption relatin+ to -personal information
contained 'ithin pu(lic records, the disclosure of 'hich 'ould constitute a clearly un'arranted
invasion of personal privacy. 91$0%@*1,*c,: or the e)emption for -preliminary drafts, notes,
recommendations, memoranda and other records in 'hich opinions are e)pressed, or policies or
actions are formulated1. 91$0%@*1,*f,: is asserted or applies, then the pu(lic (ody must report in
'ritin+, 'ithin the same time period for a respond to the F7I re0uest, a notice to the re0uester
and Pu(lic ccess "ounselor of the intent to deny the re0uest, in 'hole or in part, on those (ases/
91$0%2/!*(,: 6he notice must include a copy of the re0uest, the proposed response, and a
-detailed summary of the pu(lic (odyFs (asis for assertin+ the e)emption/. 6he Pu(lic ccess
"ounselor is to determine 'hether further in0uiry is -'arranted/. 8ithin five *!, 'or5in+ days
of receipt the Pu(lic ccess "ounselor is to notify the re0uester and pu(lic (ody if such an
in0uiry is 'arranted, 'hich then 'ill (e processed as other revie's (y the Pu(lic ccess
"ounselor 'hich 'ill (e discussed further (elo'/
-#ecific non-e*em#t #$"ic record!.
In addition to the +eneral principles and rules that presume all pu(lic records to (e open,
P// 234!$2 has added several specific provisions settin+ out particular types of pu(lic records
that must (e disclosed and are not e)empt/ &nder ne' section 2/!, all records relatin+ to
2
-o(li+ation, receipt, and use of pu(lic funds of the #tate, units of local +overnment, and school
districts. are e)pressly held to (e pu(lic records open to pu(lic inspection and copyin+/ 91$0%2/!:
#imilarly, under ne' section 2/10, the certified payroll records su(mitted to pu(lic (odies
under the Prevailin+ 8a+e ct are pu(lic records open to inspection and%or copyin+ e)cept
-contractorsF employeesF addresses, telephone num(ers, and social security num(ers must (e
redacted (y the pu(lic (ody prior to disclosure/. 91$0%2/10:
&nder ne' section 2/1!, certain information in arrest reports and criminal history records
must (e furnished as soon as practical, (ut in no event later than @2 hours after the arrest
*not'ithstandin+ the +eneral time periods for responses to F7I re0uests,/ 91$0%2/1!: 6his is=
*1, information that identifies the individual *name, a+e, address, and photo+raph 'hen and if
availa(le,> *2, any char+es relatin+ to the arrest> *;, time and location of arrest> *$, name of
investi+atin+ or arrestin+ la' enforcement a+ency> *!, if incarcerated, the amount of any (ail or
(ond> and *3, if incarcerated, the time and date the individual 'as received into, dischar+ed from
or transferred from the arrestin+ a+encyFs custody/ 91$0%2/1!*a,: Ao'ever, the information in
items ; to 3 may (e 'ithheld if disclosure 'ould -interfere 'ith pendin+ or actually and
reasona(ly contemplated la' enforcement proceedin+s. or endan+er the life or physical safety of
la' enforcement or correctional personnel or any other person, or compromise the security of
any correctional facility/ 91$0%2/1!*c,:
6he provisions of section 2/1! do not supersede the confidentiality provisions for arrest
records of the Juvenile "ourt ct/ 91$0%2/1!*d,:
Finally under ne' section 2/20, all settlement a+reements entered into, (y or on (ehalf of
pu(lic (odies, are su(ject to inspection and copyin+ (y the pu(lic e)ceptin+ that information
e)empt from disclosure may (e redacted/ 91$0%2/20:
10
The new fee !trctre for re!#on!e!.
6he pree)istin+ lan+ua+e that the fees or costs 'hich may (e char+ed (y a pu(lic (ody
are those -reasona(ly calculated to reim(urse its actual cost for reproducin+ and certifyin+. the
records, 'hich can not include search costs, any costs for revie's, and must (e imposed
accordin+ to a standard scale of fees esta(lished (y the pu(lic (ody 9ori+inally 1$0%3*a,, and no'
1$0%3*(,: 'as left in F7I (y P// 234!$2/ <ut the conte)t has (een materially chan+ed/ 6he
proviso that -purposeful imposition. of a fee inconsistent 'ith this section must (e considered a
denial of access su(ject to judicial revie' also remains 9formerly 1$0%3*c,, and no' 1$0%3*d,:/
ny re0uestor, 'ho states the purpose of the re0uest and indicates that a 'aiver or reduction of
the fee is in the pu(lic interest, may (e, as determined (y the pu(lic (ody, entitled to the copies
'ithout char+e or at a reduced char+e 91$0%3*c,:/
<ut the major chan+es (rou+ht a(out (y P// 234!$2 are that unless another statute
provides for a fi)ed fee, under a F7I re0uest for the first fifty *!0, pa+es of -letter size. or
-le+al size. (lac5 and 'hite copies, no fee at all may (e char+ed/ 6he ma)imum fee for any
pa+es more than !0 is H/1! per pa+e and the ma)imum cost for certifyin+ a record is H1/00/
91$0%3*(,: dditionally, if the copies are in another size and%or in color, the -pu(lic (ody may
not char+e more than its actual cost for reproducin+ the records/. In calculatin+ those costs, the
(ody may not include any search fees, revie' fees, or any personnel costs/ 91$0%3*(,:
For electronic records, if a re0uestor re0uests a copy of a record maintained in electronic
format, the pu(lic (ody shall furnish the copy in the re0uested format if feasi(le/ If not feasi(le,
then it must (e provided in the electronic format in 'hich it is maintained, or in paper format, at
the option of the re0uester/ If provided in electronic format, there can (e no char+e for the
search, revie' or personnel costs of reproducin+ the copies, and the pu(lic (ody may only char+e
11
the actual cost of purchasin+ the recordin+ medium, i/e/ the disc, dis5ette, tape or other medium/
91$0%3*a,:
The #roce!! of re!#ondin' to F%IA reqe!t!.
6he ct does not re0uire any specific format for the -'ritten re0uest. nor e)pressly
authorize the pu(lic (ody to re0uire a specific format for a re0uest/ In fact, P// 234!$2
e)pressly states that the pu(lic (ody may not re0uire that a re0uest (e su(mitted on a standard
form 91$0%;*c,:, thou+h it can ma5e the re0uest/ ll F7I re0uests must (e -immediately.
for'arded to its F7I officer*s,/ 8e recommend that the pu(lic (ody ma5e every attempt to
have re0uestors fill out a ?e0uest Form of the type it uses, as it helps insure that all of the
information needed is provided and necessary procedures and timelines are follo'ed/
Incomplete addresses or unclear dates can definitely lead to compliance pro(lems/ If a pu(lic
(ody has more detailed policies or administrative procedures in place, includin+ specific letter
e)amples to use for e)tension notifications, denials, approvals, etc/ those are perfectly suita(le
su(stitutes so lon+ as each deadline and step in the process is complied 'ith/ 6hey simply canFt
(e re0uired of the re0uesters/
lthou+h pu(lic (odies may re0uire that F7I re0uests (e -'ritten. *delivered (y
personal delivery, mail, telefa) or other means availa(le,, the pu(lic (ody may honor oral
re0uests/ 6he pu(lic (ody may not re0uire the re0uester to specify the reason or purpose of the
re0uest -e)cept to determine 'hether the records are re0uested for a commercial purpose or
'hether to +rant a re0uest for a fee 'aiver/. 91$0%;*c,:
E)cept for -commercial re0uests,. 'hich is discussed herein, within fi.e (5) $!ine!!
da+! of a F7I re0uest, unless the time is properly e)tended *as discussed ne)t,, the pu(lic (ody
must comply or deny, in 'ritin+/ Failure to deny, comply or e)tend 'ithin those ! days is
12
considered a denial of the re0uest/ Failure to respond 'ithin the proper time, (ut thereafter
providin+ the copies must (e done 'ithout any fee char+e/ nd failure to respond eliminates the
pu(lic (ody from treatin+ a re0uest as -unduly (urdensome/.
7ne e)tension of an additional five *!, (usiness days may (e used, if a re0uest is= *1, for
records stored in 'hole or in part at other locations> *2, the re0uest re0uires collection of a
su(stantial num(ers of records> *;, the re0uest is a cate+orical one and to (e responsive re0uires
an e)tensive search> *$, the re0uested records are not located in a routine search and additional
effort is (ein+ made to locate them> *!, the records re0uested re0uire e)amination and evaluation
as to e)emptions or re0uire appropriate deletions from them> *3, the re0uested records can not (e
provided 'ithin the time limit 'ithout unduly (urdenin+ the operations of the pu(lic (ody> or *@,
there is a need for consultation 'ith another pu(lic (ody 'hich has a su(stantial interest in the
determination or su(ject matter of the re0uest/ 91$0%;*e,: In the event of such additional time,
the pu(lic (ody must, 'ithin the initial ! day period, notify the re0uester of the reasons and the
date (y 'hich the documents 'ill (e availa(le/ Failure to do so is considered a denial of the
re0uest/ If the time limit is passed (ut the pu(lic (ody does produce the records, they may not
char+e any fee for those copies/ Failure to produce the records durin+ the e)tension denies the
pu(lic (ody the ri+ht to treat the re0uest as -unduly (urdensome/.
If the pu(lic (ody and its F7I officer*s, intend to deny a re0uest, it must notify the
re0uester in 'ritin+ of the denial and the specific reasons, includin+ -a detailed factual (asis for
the application of any e)emption claimed/. 91$0%2*a,: 6he notice must include the names and
titles or positions of each person responsi(le for the denial, inform the re0uester of their ri+ht to
revie' (y the Pu(lic ccess "ounselor and provide the address and phone num(er thereof, and
inform the re0uester of their ri+ht to judicial revie' under the ct/ 91$0%2*a,:
1;
(/nd"+ $rden!ome) reqe!t!.
6he ct does not really define 'hat the term -unduly (urdensome. means, thou+h it does
e)pressly state in section ;*+, that -repeated re0uests from the same person for the same records
that are unchan+ed or identical records previously provided or properly denied under this ct
shall (e deemed unduly (urdensome under this provision/. 8e 'ould call this the -rain man.
re0uester for the possi(le, thou+h hi+hly unli5ely, re0uester 'ho repeats the identical records
re0uest *i/e/ not even havin+ their spouse or si(lin+ do so, repeatedly from the pu(lic (ody/ 7f
far more cost and difficulty is the re0uester 'ho see5s hu+e amounts of material in a re0uest or
multiple re0uests and%or the re0uester 'ho see5s documents or records that may (e fe' in
num(er (ut are contained, or li5ely so, 'ithin hu+e data (ases or data (an5s, especially the
poorly inde)ed ones, as in a -needle in the haystac5. challen+e/ Eeither are necessarily -unduly
(urdensome. under F7I, and (oth 'ill re0uire the pu(lic (ody to prove (y clear and
convincin+ evidence *at the ris5 of fines and mandatory attorneysF fees as discussed (elo', that
such a re0uests are indeed -unduly (urdensome/.
F7I specifies that (efore a pu(lic (ody may invo5e the -e)emption. for -(urdensome
re0uests. it must e)tend to the re0uestor the opportunity to confer 'ith it in an attempt to reduce
the re0uest to mana+ea(le proportions/ 6his is not only a mandate, it can (e a useful tool in
respect to bona fide re0uests in tryin+ to narro', identify, and locate specific records desired (y
the re0uester *thou+h not the purpose of the re0uest,/ If the pu(lic (ody responds to a cate+orical
re0uest (y statin+ it 'ould (e unduly (urdensome, it must do so in 'ritin+ specifyin+ the reasons
'hy it 'ould (e unduly (urdensome and the e)tent to 'hich compliance 'ould (urden the
operations of the pu(lic (ody/ 6hat is treated as a denial of the re0uest 91$0%;*f,:/
1$
The new conce#t of (commercia" #r#o!e) reqe!t!.
P// 234!$2 creates a ne' term of -commercial purpose. and defines it as= -the use of
any part of a pu(lic record or records, or information derived from pu(lic records, in any form of
sale, resale, or solicitation or advertisement for sales or services/. 91$0%2*c410,: Ao'ever,
re0uests from ne's media and non4profit, scientific, or academic or+anizations are e)cluded,
'hen the principal purpose of the re0uest is -to access and disseminate information concernin+
ne's and current or passin+ events. or for articles of opinion or features of interest to the pu(lic,
or for academic, scientific or pu(lic research or education/ 91$0%2*c410,:
pu(lic (ody has t'enty4one *21, days to respond to a re0uest made for a -commercial
purpose/. 6he response must either= *1, provide the re0uester an estimate of the time re0uired to
provide the records re0uested and an estimate of the fees to (e char+ed *'hich the pu(lic (ody
may re0uire to (e paid in full prior to copyin+,> *2, deny the re0uest under a listed e)emption> *;,
provide notice to the re0uester that the re0uest is unduly (urdensome and offer the opportunity to
attempt to reduce the re0uest to mana+ea(le proportions> or *$, provide the re0uested records/
91$0%;/1*a,: 6he pu(lic (ody, +ivin+ priority to re0uests for non4commercial purposes, and
considerin+ the size and comple)ity of the re0uest, is to comply 'ith a commercial re0uest
'ithin a reasona(le period, unless the records are e)empt from disclosure/ 91$0%;/1*(,:
It is a violation of F7I for someone to 5no'in+ly o(tain a pu(lic record for a
commercial purpose 'ithout disclosin+ that it is for a commercial purpose, if as5ed to do so (y
the pu(lic (ody/ 91$0%;/1*c,: 6herefore in any re0uest form or chec5list used (y a pu(lic (ody,
or in the event of receipt of a 'ritten F7I re0uest, 'e recommend the pu(lic (ody e)pressly
in0uire 'hether the re0uest is for a -commercial purpose/.
1!
New #ro.i!ion! re"atin' to fine!0 #ena"tie! and attorne+!1 fee!.
7f course F7I provides that anyone 'ho is denied access to pu(lic records or copies
thereof, may sue the pu(lic (ody/ 91$0%11*a,: In all such suits, the pu(lic (ody (ears the (urden
of proof on any claim of e)emption from disclosure/ &nder the -old. F7I la', if a re0uester
sued the pu(lic (ody for any alle+ation of improper action, and the pu(lic (ody had a reasona(le
claim that its action 'as authorized (y la', the re0uester could not recover their attorneysF fees
even if they -'on. the la'suit and the records 'ere disclosed/ fe' years a+o, this aspect of
the la' 'as chan+ed to provide that if the re0uester su(stantially prevailed in the liti+ation,
*unless the fundamental reason for the re0uest 'as to further their commercial interests, and then
only if the pu(lic (ody lac5ed any reasona(le (asis in the la' for 'ithholdin+ the records, the
courts could order the pu(lic (ody to pay the re0uesterFs reasona(le attorneysF fees and costs/
6his 'as not +ood enou+h for re0uesters, so P// 234!$2 a+ain chan+ed section 11, so that if a
re0uester prevails in liti+ation the court must a'ard the re0uester -reasona(le attorneysF fees and
costs. thou+h in determinin+ 'hat is -reasona(le. the court is to consider the -de+ree to 'hich
the relief o(tained relates to the relief sou+ht. in the la'suit/ 91$0%11*i,:
Perhaps most importantly, under P// 234!$2, if a court determines -that a pu(lic (ody
'illfully and intentionally failed to comply 'ith this ct, or other'ise acted in (ad faith, the
court shall also impose upon the pu(lic (ody a civil penalty of not less than H2,!00 nor more
than H!,000 for each occurrence/. 91$0%11*j,: 6he court is to consider in assessin+ the fine, for
-a++ravation or miti+ation. the (ud+et of the pu(lic (ody and 'hether the (ody has previously
(een assessed penalties for violations of F7I/
13
The P$"ic Acce!! &on!e"or.
lthou+h 'e have had a Pu(lic ccess "ounselor in the Illinois ttorney DeneralFs office
since 200$, that position 'as essentially just a title that ttorney Deneral Lisa Gadi+an had
created and assi+ned to one of her assistant attorneys/ It 'as not statutorily created or
authorized/ &nder P// 234!$2 no' the office of Pu(lic ccess "ounselor, as a part of the
ttorney DeneralFs 7ffice, has (een created (y statute/
ny re0uester 'ho (elieves a violation of F7I has occurred *(y a pu(lic (ody other
than the Deneral ssem(ly, its committees, commissions and a+encies 91$0%2/!*a,:, may file, not
later than 'ithin 30 days after the alle+ed violation, a re0uest 'ith the Pu(lic ccess "ounselor
for a revie' of the pu(lic (odyFs actions/ 6he re0uest for revie' must (e 'ritten and include a
copy of the re0uest and any responses from the pu(lic (ody/
&pon receipt of a re0uest for revie', the Pu(lic ccess "ounselor is to determine
'hether further action is -'arranted/. If the Pu(lic ccess "ounselor determines that the
alle+ed violation is unfounded, he must so advise the re0uester and pu(lic (ody and no further
action shall (e ta5en/ 91$0%2/!*c,: In all other cases, he must, 'ithin seven *@, 'or5in+ days of
receipt, for'ard a copy of the re0uest for revie' to the pu(lic (ody and specify the list of records
or other documents the pu(lic (ody must furnish for revie'/ 8ithin seven *@, 'or5in+ days of
receipt of the re0uest, the pu(lic (ody must furnish those records or documents and -shall
other'ise fully cooperate 'ith the Pu(lic ccess "ounselor/. 91$0%2/!*",:
If the pu(lic (ody fails to furnish the records or documents, or -if other'ise necessary,.
the ttorney Deneral may issue a su(poena to the pu(lic (ody or any person havin+ 5no'led+e
of or records pertainin+ to a re0uest/ 6o the e)tent that records or documents produced (y a
pu(lic (ody contains information claimed to (e e)empt under section @, the Pu(lic ccess
1@
"ounselor shall not further disclose such information/ 91$0%2/!*c,: 8ithin seven *@, 'or5in+
days after it receives the re0uest for production of records, the pu(lic (ody may, (ut is not
re0uired, to ans'er the alle+ations of the re0uest for revie'/ 6he -ans'er. may ta5e the form of
a letter, (rief, or memorandum and the Pu(lic ccess "ounselor shall for'ard a copy to the
re0uester, 'ith any alle+ed confidential information redacted from the copy/ 91$0%2/!*d,: 6he
re0uester may, (ut is not re0uired to respond in 'ritin+ 'ithin seven *@, 'or5in+ days and must
provide a copy to the pu(lic (ody/
&nless the Pu(lic ccess "ounselor e)tends the time (y not more than 21 (usiness days,
(y sendin+ a 'ritten notice to the re0uester and pu(lic (ody, that includes a statement of the
reason for the e)tension, or decides to address the matter 'ithout the issuance of a (indin+
opinion, the ttorney Deneral shall e)amine the issues and records, shall ma5e findin+s of fact
and conclusions of la', and shall issue to the re0uester and the pu(lic (ody an opinion in
response to the re0uest for revie' 'ithin si)ty *30, days after the receipt, 'hich shall (e (indin+
on (oth the re0uester and the pu(lic (ody, su(ject to administrative revie'/ 91$0%2/!*f,:
&pon receipt of a (indin+ opinion concludin+ that a violation has occurred, the pu(lic
(ody must either ta5e necessary action immediately to comply 'ith the directive of the opinion
or shall initiate administrative revie'/ If the opinion concludes that no violation occurred, the
re0uester may initiate administrative revie'/ 91$0%2/!*f,: If the pu(lic (ody discloses records in
accordance 'ith the ttorney DeneralFs opinion, the ct says it is immune from all lia(ilities (y
reason thereof and shall not (e lia(le for penalties under the ct/
In any event, and at any time, if a re0uester initiates a la'suit under section 11 of F7I,
the re0uester must notify the Pu(lic ccess "ounselor 'ho shall ta5e no further action 'ith
respect to the re0uest and must notify the pu(lic (ody/ 91$0%2/!*+,:
1B
6he ttorney Deneral may e)ercise her discretion and choose to resolve a re0uest for
revie' (y mediation or (y some means other than issuance of a (indin+ decision *e/+/ a duelI,/
91$0%2/!*f,: nd the decision not to issue a (indin+ decision is not revie'a(le/ 6he P" is
e)pressly authorized to issue advisory opinions to pu(lic (odies re+ardin+ compliance and may
initiate a revie' (y a 'ritten re0uest *from either the head of the pu(lic (ody or its attorney,
'hich must contain -sufficient accurate facts from 'hich a determination can (e made. thou+h
the P" may re0uest additional information from the pu(lic (ody to assist in the revie'/ Gost
importantly, a pu(lic (ody that relies in +ood faith on an advisory opinion of the ttorney
Deneral in respondin+ to a re0uest -is not lia(le for penalties. so lon+ as -the facts upon 'hich
the opinion is (ased have (een fully and fairly disclosed. to the P"/ 91$0%2/!*h,: (indin+
opinion issued (y the ttorney Deneral is revie'a(le only (y an administrative revie' filed in
either "oo5 or #an+amon "ounty/
P// 234!$2 also ma5es several additions to the ttorney Deneral ct 91! IL"# 20!%1 et
seq.: (ut those are mostly duplicative of the chan+es noted a(ove to F7I and (elo' to the 7pen
Geetin+s ct, such as the authority to issue (indin+ and advisory opinions, to esta(lish the
Pu(lic ccess "ounselor, 'ho 'ill have, amon+ other statutory po'ers, the po'er=
*1, to esta(lish and administer a pro+ram to provide free trainin+ for
pu(lic officials and to educate the pu(lic on their ri+hts and the responsi(ilities of
pu(lic (odies under the Freedom of Information ct and the 7pen Geetin+s ct>
and to prepare and distri(ute educational materials and pro+rams>
*2, to conduct research on compliance issues> and to ma5e
recommendations to the Deneral ssem(ly concernin+ 'ays to improve pu(lic
access to pu(lic records and to the processes of +overnment>
*;, to develop and ma5e availa(le on the DJs 'e(site, or (y other means,
an electronic trainin+ curriculum for Freedom of Information officers, and an
electronic 7pen Geetin+s ct trainin+ curriculum for employees, officers, and
mem(ers desi+nated (y pu(lic (odies>
12
*$, to prepare and distri(ute to pu(lic (odies model policies for
compliance 'ith the Freedom of Information ct> and
*!, to promul+ate rules to implement these/ 91! IL"# 20!%@*c,:
6o accomplish these o(jectives, the P" may re0uest that su(poenas (e issued in
accordance 'ith F7I and the 7G/ If a person or pu(lic (ody fails to o(ey an issued
su(poena the D may file a complaint in the circuit court to= o(tain compliance, o(tain
injunctive relief and other relief as may (e re0uired/ 91! IL"# 20!%@*d, and *e,:
6he D is authorized to file an action in the circuit court of "oo5 or #an+amon "ounty
for injunctive or other relief to compel compliance 'ith a (indin+ opinion, to prevent a violation
of the 7G or the F7I, and for other relief/ 91! IL"# 20!%@*f,: 6he D shall post his or her
(indin+ opinions on the official 'e(site of the 7ffice of the ttorney Deneral, 'ith lin5s to those
opinions from the official home pa+e, and shall ma5e them availa(le for immediate inspection in
the 7ffice/ 91! IL"# 20!%@*+,:
6he revisions to this ct pertain mainly to the esta(lishment of the P", 'ho must (e a
licensed Illinois la'yer, and the P"Fs po'ers/ It is important to note ho'ever, that the P"
position is an appointed position (y the D/ 6he ct does not provide the term len+th or
anythin+ re+ardin+ removal of office/
&han'e! made $+ P.A. 96-542 to the %#en 2eetin'! Act.
6he ct esta(lishes that -9e:very pu(lic (ody shall desi+nate employees, officers, or
mem(ers to receive trainin+. on the 7pen Geetin+s ct/ 6he names of those desi+nated must (e
su(mitted to the Pu(lic ccess "ounselor *-P".,, and 'ithin 3 months after the effective date
of the ct, and they must -successfully complete. an electronic curriculum desi+ned and
administered (y the P"/ 7nce certified, those individuals must then complete annual trainin+
20
pro+rams/ ny ne' mem(ers added to the desi+nated list, must successfully complete the
certification 'ithin ;0 days/
6he other major chan+e P// 234!$2 ma5es to the 7pen Geetin+s ct is that if any person
(elieves there has (een a violation of the ct, that person has 30 days to file a ?e0uest for
?evie' to the P"/ 6he re0uest must (e in 'ritin+, si+ned (y the re0uester, and include a
summary of the facts/ If the P" determines further action is 'arranted the P" shall for'ard a
copy of the re0uest to the pu(lic (ody 'ithin @ 'or5in+ days and specify the records to (e
furnished/ 8ithin @ 'or5in+ days after receipt of the re0uest, the pu(lic (ody shall provide
copies of the records/ If the pu(lic (ody fails to comply, or if other'ise necessary, the ttorney
Deneral may issue su(poenas to anyone havin+ 5no'led+e of the violation/ 3hen condctin' a
re.iew0 the PA& ha! the !ame ri'ht to e*amine the reqired (.er$atim recordin') of a
meetin' c"o!ed to the #$"ic or minte! of a c"o!ed meetin' a! doe! a cort.
fter receivin+ a copy of a re0uest for revie' and production of records, a pu(lic (ody
may ans'er the alle+ations in the form of a letter, (rief, or memorandum/ 6he P" shall then
for'ard a copy of the ans'er or redacted ans'er to the re0uester/ re0uester or pu(lic (ody
may furnish affidavits and records concernin+ any matter +ermane to the revie'/
8ithin 30 days of the re0uest, the P" 'ill issue a (indin+ opinion/ If the parties
disa+ree 'ith the opinion, that (indin+ opinion is su(ject to administrative revie'/ Importantly,
all the pu(lic records that have (een provided to the P" durin+ its revie' process are e)empt
from disclosure under F7I 'hile in the possession of the P"/ In situations 'here the pu(lic
(ody is unclear as to the proper procedure, the P" may issue advisory opinions, and any +ood
faith reliance on such opinion relieves any lia(ility (y the pu(lic (ody under the 7pen Geetin+s
ct/
21
8hen respondin+ to any 'ritten re0uest, the D may resolve the matter throu+h
mediation or (y a means other than issuin+ a (indin+ order/ 6he decision to not issue a (indin+
order is not revie'a(le/ If a (indin+ order concludes a violation has occurred, the pu(lic (ody
shall either comply as soon as practical or initiate administrative revie'/ If no violation is found,
the re0uester may see5 administrative revie'/ If the re0uester files a civil suit 'ith respect to the
same alle+ed violation of 7pen Geetin+s ct, then the P" shall (e notified (y re0uester and
P" shall ta5e no further revie' action and must notify the pu(lic (ody/
6he D may issue advisory opinions to pu(lic (odies re+ardin+ compliance 'ith the
7pen Geetin+s ct/ 'ritten re0uest for revie' may (e initiated (y the pu(lic (ody or its
attorney and must contain specific facts/ 6he P" can re0uest additional information/ If a
pu(lic (ody relies in +ood faith on the advisory opinion, then it is not lia(le for penalties under
the 7pen Geetin+s ct, so lon+ as the facts have (een fully and fairly disclosed to the P"/
ny (indin+ opinions issued (y the D shall (e considered a final decision of the
administrative a+ency, and advisory opinions issued to a pu(lic (ody shall not (e considered a
final decision of the D/ ll actions for administrative revie' of (indin+ opinions shall (e
commenced in "oo5 or #an+amon "ounties/
22