Overview

The updated Illinois FOIA is a carefully worded and detailed piece of public records law, helping requesters and agencies navigate the law with precision. Illinois agencies have five business days to respond to a request or they must cite why they are denying it from a very specific list of possible reasons. All branches and state agencies of government are able to be requested from, and one can be a citizen of any state to request in Illinois. A division of the Attorney General’s Office called the Public Access Counselor created to help mediate between requesters and agencies. If an agency is found to be guilty of wrongdoing concerning FOIA, then the penalties incurred on the agency are among the most hefty in the nation, between $2,500 or $5,000. Public records fees are laid exactly to cut down on controversy and agencies may not charge search fees and must keep fees at the actual cost of labor to copy them.

Exemptions are highly detailed and expansive. Some exemptions belong to broad categories laid out in the act, while others are much shorter and more specific. There are over 25 categories alone, although again some are much less wordy than others. This makes it easy to request agencies while knowing what is permitted to request about and what may lead to an appeal, although a little time may be required to read through all of the possible exemptions. On the other hand this laundry list of exemptions can also make requesting difficult, given the litany of potential exemptions an agency can attempt to use. The Public Access Counselor is a nice touch here as well, making it harder in theory for an agency to do this.

If one has trouble receiving a response from an agency or disagrees with a rejection, a requester can file a complaint with the Public Access Counselor. However, in the case that the requester feels the Counselor did not make the correct judgement in the case, one may file suit in circuit court and appeal that way. Illinois hopes that having the Public Access Counselor screen rejections even before the requester has had a chance to file an appeal will cut down on this sort of controversy, but the law has yet to be fully tested under the current adaptation of the Illinois FOIA.

The Law

Required to respond in five business days or cite a specific reason why an extension is necessary as listed in the law all branches of government held accountable to the law any person regardless of citizenship may request appeals go through the Public Access Counselor in the Attorney General’s Office

Supplemental

records retention schedule

The Details

Can you submit a request if you’re not a resident?

Yes, the law states that it applies to “any person,” with person defined as any individual, corporation, partnership, firm, organization or association, acting individually or as a group. See 5 ILCS 140/2(b).

To whom does this apply?

Executive?

Yes.

Legislative?

Yes.

Judicial?

Yes.

Is there a designated records custodian?

Yes, the Public Access Counselor was created in the Office of the Illinois Attorney General to decide and mediate FOIA requests. If an agency decides they are going to reject a request they must notify both the requester and the Public Access Counselor and cite the specific exemptions they are invoking. The Public Access Counselor also handles appeals.

Who is exempted?

No specific agencies are exempted. The law states that all public bodies must respond to FOIA except for exempt requests.

How can requests be submitted?

In-person?

Yes.

Verbally?

Yes.

By mail?

Yes.

By email?

Yes.

How long do they have to respond?

Agencies have five business days to respond unless they cite one or more of seven reasons why a delay is necessary, as written specifically in the act. These reasons are:

(i) the requested records are stored in whole or in part at other locations than the office having charge of the requested records; (ii) the request requires the collection of a substantial number of specified records; (iii) the request is couched in categorical terms and requires an extensive search for the records responsive to it; (iv) the requested records have not been located in the course of routine search and additional efforts are being made to locate them; (v) the requested records require examination and evaluation by personnel having the necessary competence and discretion to determine if they are exempt from disclosure under 5 ILCS 140/7 or should be revealed only with appropriate deletions; (vi) the request for records cannot be complied with by the public body within the time limits prescribed by 5 ILCS 140/3(c) without unduly burdening or interfering with the operations of the public body; (vii) there is a need for consultation, which shall be conducted with all practicable speed, with another public body or among two or more components of a public body having a substantial interest in the determination or in the subject matter of the request. See 5 ILCS 140/3(e).

Does the agency have to give you a tracking number or estimated date of completion?

No.

Can they ask why you ask?

No.

What enforcement?

The Public Access Counselor is in charge of enforcement of the Illinois FOIA. The Counselor reviews each rejection by a public body to a requester and determines if the exemption was used properly. However, this may not in itself be enough to trigger actual penalties against an agency. However, if in a court proceeding an agency has been found guilty of willfully and purposefully failing to comply with the act, a penalty of between $2,500 and $5,000 can be leveraged by the court. This is among the harshest FOIA penalties in the nation.

Fees?

Fees are a specific and detailed part of the Illinois FOIA, with some unique aspects included. Perhaps the most interesting is if an agency doesn’t respond within five business days they may not charge any fee. As for more typical non-electronic records the law states that, “a public body may charge fees reasonably calculated to reimburse its actual cost for reproducing and certifying public records and for the use, by any person, of the equipment of the public body to copy records.” 5 ILCS 140/6(b). No fees may be charged for records requests that amount to under 50 black and white pages and they only charge a copying fee of $0.15 per page, and they may not charge for search time. Records that are in color must be charged at the actual cost of copying the records, and no more. Electronic records may only be charged for the amount of the cost of the medium that the record is copied onto. For driving records it is up to the Illinois Vehicle Code to set the fee.

The Act also states that “the imposition of a fee not consistent with subsections (6)(a) and (b) constitutes a denial of access to public records for the purposes of judicial review.” 5 ILCS 140/6(d).

Are there fee waivers for media requests or those made in the public interest?

Yes, anyone that can prove they are requesting in the public’s interest will have their fees either waived entirely or reduced.

Attorney’s fees - Can you win them?

Yes, if in a court of law an agency is found to have in bad faith denied a request, a requester can win back reasonable attorneys fees.

Exemptions and Appeals

What exemptions exist?

FOIA exemptions in Illinois are broken down into categories, with specific languaging outlining each category and the ways in which a request may be found exemptible. It is also important to note here that in the state of lllinois exemptions in the federal FOIA can be used to exempt documents. Private information is exemptible in Illinois. Here is the exact phrasing the law provides about what constitutes private information: “Private information” means unique identifiers—such as a person’s social security number, driver’s license number, employee identification number, biometric identifiers, personal financial information, passwords or other access codes, medical records, home or personal telephone numbers, and personal email addresses. Private information also includes home address and personal license plates, except as otherwise provided by law or when compiled without possibility of attribution to any person. 5 ILCS 140/2(c-5). Private information also includes “files, documents, and other data or databases maintained by one or more law enforcement agencies and specifically designed to provide information to one or more law enforcement agencies regarding the physical or mental status of one or more individual subjects.” 5 ILCS 140/7(1) (b-5). Personal information also is exemptible, defined as information which would “constitute a clearly unwarranted invasion of personal privacy” and that is “highly personal or objectionable to a reasonable person and … the subject’s right to privacy outweighs any legitimate public interest in obtaining the information.” 5 ILCS 140/7(c).

Law enforcement exemptions in Illinois are fairly standard, exempting information that could result in a biased trial or a mistrial, is involved with active or pending cases or investigations, or could threaten how law enforcement conducts investigations or officers lives.

The rest of the exemptions are shorter and more highly specific. Trade secrets or commercial information that could cause competitive harm Documents concerning grants or proposals that would cause someone or an entity to gain an advantage<br /> Research data “could reasonably be expected to produce private gain or public loss.” See 5 ILCS 140/7(1)(I).

Educational Examination Data Architectural or engineering data that could compromise a facilities security <br /> Communications with attorneys or auditors Closed meeting minutes until released under the Open Meetings Act Employee grievances or disciplinary cases of public agencies Real estate Proprietary insurance data Security threats as pertaining to specific policies, assessments, and measures that aim to prevent harm coming to the public Ongoing collective bargaining agreements Student records

This isn’t a complete list of the specific exemptions listed in the law although they are the most pertinent. It is recommended that if one is requesting an agency in Illinois that they take some time to familiarize themselves with the large amount of exemptions listed.

Do they have to tell you why a portion or pages were redacted or withheld?

Yes.

How much time do you have to appeal?

60 days.

Can you appeal the courts?

Yes, you may appeal the circuit court of the county that the agency requested from has their principal office located..

Resources

Organizations

citizen advocacy center

Illinois first amendment center

Attorneys and Law Firms

The following attorneys and law firms have practiced public records law. Names marked with an asterisk have indicated a willingness to offer pro bono services on a case by case basis.

There are currently no experienced public records law attorneys that we know of in Illinois. Write to us at info@MuckRock.com if you know of any and want to help us out!

Successful appeals

http://foia.ilattorneygeneral.net/bindingopinions.aspx

News Stories on Public Records Laws in the State

Illinois FOIA under attack from state lawmakers

Blogs and feeds primarily focused on public records in Illinois

Public Records Guide and Advice

Illinois AG FAQ Citizen Advocacy Center’s Journalist Guide to the Freedom of Information Act

Newsletters

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Big FOIA wins

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