Illinois House Bill 3796, which amends the Illinois Freedom of Information Act (5 ILCS 140), was recently enacted into law as Public Act 98-1129. This bill has been quite controversial, with many opponents arguing that it weakens the current provisions of FOIA. One such opponent was Governor Quinn, who vetoed the bill in its entirety when it came across his desk in June.
In his veto message, Quinn argued that the bill would “make it more difficult for citizens to seek public records” under FOIA while “also slow[ing] down the process for individuals who lack electronic means to request or obtain information.” However, the House and Senate both recently voted to override the Governor’s veto, with the newly-enacted law taking effect immediately.
With the debate being resolved for now, some explanation is in order as to how this law will actually play out for FOIA requests going forward. From the perspective of the Act’s opponents, two provisions of the newly-revised Act are the main causes for concern.
First is the Act’s discouraging of “voluminous requests” for public records. Under 5 ILCS 140/2(h), the Act categorizes “voluminous requests” as FOIA requests exceeding 500 pages or requests consisting of more than five smaller requests which are made in a 20-business-day period.
While this language is intended to strengthen existing statutory language that already restricts overly-burdensome, “nuisance” requests for public information, critics worry that this new provision will also dissuade legitimate requests that happen to fall within its reach.
But under the same provision, FOIA requests made by groups such as news media and non-profit, scientific, or academic organizations for non-commercial or research purposes will be exempted from being considered “voluminous”, thus granting protection for many requesters.
The second problematic provision is the newly-added 5 ILCS 140/6(a-5), under which government bodies will now be allowed to charge anywhere from $20 to $100 to provide electronically-formatted records that fall within the definition of “voluminous requests”.
On the other hand, 5 ILCS 140/8.5(a), a section added at the behest of the Illinois Library Association, helps to counterbalance this provision by encouraging (although not requiring) government bodies to post documents requested under FOIA on their Web sites.
Section 8.5(a) further encourages government bodies to “notify the requester that the public record is available online and [to] direct the request to the website where the record can be reasonably accessed.” Section 8.5(b) addresses the situation where a requester is “unable to reasonably access the record online”, allowing the requester to re-submit the request, with the government body then having to make the record available for inspection or copying.
In summary, there certainly are valid concerns about the bill’s effect on transparency and costs.
However, the offsetting exceptions to the “voluminous request” language and potential for increased use of the Internet for dissemination of information requested under FOIA should help balance these concerns. At the very least, the new language creates a less burdensome environment for many FOIA requesters than we might otherwise have seen.
For an example of what could have been, see Senate Bill 2799, which, if enacted instead of House Bill 3796, would have made it easier for governmental bodies to restrict information from being disclosed during replies to FOIA requests while also hindering the ability of requesters to file legal challenges and recover attorney’s fees when government bodies don’t follow FOIA.