After Edgar County corrections officers were convicted in 2012 of having sex with inmates, two residents of the Downstate County set out to use the state’s open records law to look for more wrongdoing in the sheriff’s office.
Four years later, Kirk Allen and John Kraft are still waiting to obtain public records—audio recordings of jailhouse interviews—they believe could shed more light on their suspicions. The delay continues despite a ruling from Illinois Attorney General Lisa Madigan that Allen and Kraft deserved access to the recordings.
Their frustrations are a vivid example of what some critics call a broken system in which delays by government bodies and a slow-moving appeals process keeps public records out of the hands of citizens entitled to have them under the state’s Freedom of Information Act.
As the experience of Allen and Kraft vividly illustrates, the backlog of unresolved FOIA appeals can sometimes stretch on for years.
“A delay is the same as a denial,” said Allen, a co-founder of the Edgar County Watchdogs which sees as its mission the investigation of waste and impropriety inside local governments in Illinois.
The Edgar County jail in Paris, Ill. | Photo by JimmyWayne
Within weeks of those 2012 convictions, Allen and Kraft filed Freedom of Information Act requests with the Illinois State Police, which handled the probe into the Edgar County jail. The pair wanted to listen to recorded state police interviews to see if the investigation found any other officers or supervisors engaging in similar acts.
The Watchdogs said the Illinois State Police never responded to the FOIA requests even though state law requires both quick acknowledgment of such queries and an explanation if they are rejected. To force action, Allen and Kraft then appealed their case to Madigan’s Public Access Counselor office, a mechanism set up under state law to press government bodies to comply with open records and open meetings mandates.
It took the counselor’s office until 2015 to issue a ruling on the appeal, which amounted to a non-binding opinion advising the state police to release the recordings. And because it was non-binding, the police were free to withhold the requesting recordings– which they to date have, according to the Watchdogs.
“We waited over 2½ years, and when the Public Access Counselor finally made its determination, the Illinois State Police simply ignored it,” Allen said. “It not only shows how slow and unresponsive the Public Access Counselor is, but also that it has no power.”
|From left: Kirk Allen and John Kraft | Photo by the Edgar County Watchdogs|
In the wake of the corruption scandal surrounding former Illinois Gov. Rod Blagojevich, state lawmakers created the counselor’s office to promote government transparency. The goal was to create a legal stick to hold over bureaucrats and officeholders if they resisted compliance with open records and open meetings laws.
In essence, the office was designed to provide legal heft for average citizens or even media that lacked deep pockets to bankroll court challenges in disputes with government bodies over release of public records. The office has the power to issue binding opinions forcing governments to comply with records requests, but it also can issue non-binding opinions or even try to negotiate a resolution to disputes with a public body.
Critics complain that the office can be both slow to act on appeals while pulling its punches when it finally does. For example, the counselor’s office refrains from flexing its power to issue subpoenas which could help pry public records from governments unwilling to release them.
“The counselor was created to provide advice and intervention…an alternative to litigation,” explained Sarah Pratt, an attorney who runs the counselor’s office.
FOIA requests are common tools employed in media news gathering, but most FOIA filings are submitted by private citizens. Experts fear that delays created by the appeals backlog, coupled with stall tactics some governments often employ when faced with records requests, may discourage taxpayers from pursuing records.
“My gut tells me that some people who go through the process just give up, or forget they made the request,” said Donald M. Craven, a Springfield attorney specializing in First Amendment issues and access to government meetings and records.
|Donald M. Craven|
“They get mad about something the city council does, file a FOIA, and it gets denied. They appeal to the public access counselor, and they never hear back. Pretty soon, they just get worn out and they go get mad about something else,” Craven said.
Under Illinois FOIA law, citizens have the right to request all reports, letters, emails, memos photographs, recordings and “all other documentary materials pertaining to the transaction of public business.” Public bodies have five business days to comply with or deny a FOIA request or, in the alternative, explain why a delay in coming to a decision is warranted.
Rejections can be fought with lawsuits or with appeals to the counselor’s office.
Since its creation in 2010, the office says it has handled nearly 30,000 appeals in FOIA and Open Meetings Act cases. The office says it does not keep records on the average time it takes to close a case, but 4,500 of those appeals are still pending.
Pratt says her office has achieved “tremendous success” despite the large number of cases waiting for a decision.
“Is the glass half, empty or half full?” Pratt said. “It seems like a lot of open cases, but we’ve also closed 85 percent.”
The volume of appeals handled by the counselor’s office has steadily risen over the years even as its staffing has largely remained static. Madigan’s office says its counselor section currently operates with 17 employees, just one more than it had five years ago despite a growing workload.
The majority of open appeals are for FOIA cases because of their complexity, Pratt said.
“We get criticized for not doing things. But we’ve got to be careful with our reviews. There’s not a lot of case law in this area, so it takes more time to review and make decisions,” Pratt said.
The strongest tool possessed by the counselor is the ability to issue a binding decision requiring a government to comply with a FOIA request or face the threat of the Attorney General filing a lawsuit. Under state law, the counselor must issue a binding opinion within 60 days of receiving an appeal, with an option for a 30-day extension.
The counselor typically issues between 15 and 20 binding opinions a year, often making headlines. Among them was a 2015 ruling that Gov. Bruce Rauner’s office improperly redacted names of meeting attendees on the governor’s calendar. In August, the counselor issued another binding opinion related to Chicago’s controversial Laquan McDonald shooting, stating that the private emails of police officers discussing the case were considered public record.
Binding opinions are the exception, however. By issuing non-binding opinions or seeking to resolve disputes through negotiation, the counselor avoids having to reach decisions in 60 days while also taking an action that could set legal precedent. A binding opinion sometimes triggers court action, with either the Attorney General suing a government to comply, or the government suing to prevent compliance. It winds its way through courts and perhaps appeals, and the final outcome becomes part of case law, Pratt said.
So the counselor’s office is careful what binding opinions it issues, preferring government compliance through a non-binding decision or negotiation, Pratt said.
The counselor also has subpoena power to retrieve records, but chooses not to exercise that option, Pratt said. “The counselor was created to provide advice and intervention…an alternative to litigation,” Pratt said.
But this approach can sometimes result in delays. And for that reason, Diane Benjamin, a conservative blogger and citizen watchdog in Bloomington, has given up on filing appeals with the counselor and goes directly to court.
“I consider the counselor a complete joke. You have to keep harassing them or they put you on the bottom of the pile,” said Benjamin, editor of the BLNNews blog, which covers governments in Bloomington and Mclean County.
From generating FOIAs for emails from the Bloomington City Council, to seeking revenue figures on concessions at the local arena, Benjamin simply files her own lawsuits when she feels she’s getting stonewalled.
Her first lawsuit, handwritten, was filed in 2015. Benjamin represented herself in court, and a judge ruled in her favor by ordering the City of Bloomington to turn over the records she sought and pay $271 in legal costs.
“The judges here have been just great to me. They’ve taken into account I don’t know what I’m doing,” Benjamin said.
But some FOIA experts doubt many citizens are willing to invest the time and expense of taking a government to court over a FOIA violation.
“The average citizen finds it tough to navigate the courts, even though it might be quicker,” said Ben Silver, a lawyer with the Citizen Advocacy Center, a non-partisan organization in Elmhurst.
Silver said blame for an appeals backlog shouldn’t be laid entirely at the doorstep of the counselor. “It takes weeks for both sides to respond. Some local governments try to drag their feet,” Silver said.
Attempting to reduce the backlog, Pratt has assigned a paralegal to comb the open files to assess the status of each case and see if it can be expedited. She also is lobbying to hire additional attorneys and support staff, although she faces a tough fight given the state’s budget crisis.
“We don’t like the backlog,” Pratt said. “We are always striving to do better, looking for ways to improve.”
Those words do little to soothe Allen with the Edgar County Watchdogs. He’s still fuming because the Illinois State Police haven’t released recordings in the Edgar County jail case. The state agency refuses to comply because it wasn’t flatly ordered to by the counselor’s office.
“With it being non-binding, there was no requirement for the agency to respond to the FOIA,” said Master Sgt. Jason Bradley, a spokesman for the state police.
Bradley said certain portions of the requested audio would identify names and addresses of victims, information that state police lacked the equipment and budget to redact. “The technology didn’t exist in 2012 to redact the information without undo expense,” Bradley said.
“If they want to resubmit the FOIA, now there is new technology that does exist to redact the information.”
Pratt said she was aware of this case, but the non-binding opinion meant the state police could not comply without penalty. If the agency had ignored a binding request, the Attorney General’s office could have taken it to court for violating the law. Pratt suggested the Edgar County watchdogs could resubmit the FOIA, and if the state police refused to comply again, the counselor could write a binding opinion, forcing the release of the tapes.
“The premise of the Public Access Counselor was that all government bodies would approach FOIA with a willingness to receive guidance and follow the law,” Pratt said in response to this case. “With over 400 new matters every month, no additional amount of staffing would allow us to issue binding opinions in every matter or sue every agency that fails to comply with our office. The process works best when government bodies ultimately want to follow the law and be transparent.”
Allen vows that the Edgar County Watchdogs will now file another FOIA. Even so, he says the experience with the counselor’s office has been nothing if not frustrating.
“The message that gets sent is that every public body doesn’t have to bother answering a FOIA,” Allen said. “I’m so fed up with the Public Access Counselor. It has subpoena power. It has the power to take people to court. But it never exercises that power. It has no teeth.”