Illinois Supreme Court ruling a victory for government transparency

Jeffrey Schwab

Jeffrey Schwab is a senior attorney with the Liberty Justice Center.

Jeffrey Schwab
May 24, 2018

Illinois Supreme Court ruling a victory for government transparency

The court’s ruling strengthens Illinois’ Freedom of Information Act, a crucial tool in holding government officials accountable.

The Illinois Freedom of Information Act, or FOIA, is supposed to give every citizen the right to obtain public records so they can better understand what their government is doing. Too often, however, public bodies in Illinois violate the letter and spirit of the law by resisting citizens’ requests for public records any way they can.

Fortunately, the Illinois Supreme Court issued an opinion on May 24 that will help protect the public’s ability to obtain public records under FOIA.

The Supreme Court’s opinion involved two cases with similar facts. In both cases the plaintiffs, Christopher J. Perry and the Institute for Justice, requested information under FOIA from the Illinois Department of Financial and Professional Regulation, which refused these requests even though the information sought was not exempt from FOIA at the time.

The parties filed lawsuits challenging the department’s denial of their requests. But while those lawsuits were still in court, the Illinois General Assembly passed and then-Gov. Pat Quinn signed a bill that prohibited the state from disclosing the exact information these plaintiffs had requested. Although the bill did not purport to apply retroactively to the time when the plaintiffs made their requests, the department argued that this information was exempt under these new laws. The Supreme Court found that these laws were not retroactive and that they did not exempt the information sought by the plaintiffs.

The decision is significant because of its potential effects on government transparency. Because of those implications, the Liberty Justice Center filed a “friend of the court” brief on behalf of the Illinois Policy Institute and Edgar County Watchdogs supporting the plaintiffs and informing the court of the potential consequences to citizens seeking access to government records under FOIA.

As the Institute and the Edgar County Watchdogs explained in their brief, FOIA gives every citizen the right to access government records, subject to certain limited exemptions, with a presumption in favor of transparency. But the reality is that those seeking government records via FOIA must overcome multiple hurdles in order to obtain them. For example, all too often, government agencies simply deny FOIA requests unless and until a citizen sues and forces them to comply with the law.

This ruling establishes that new laws prohibiting public records from disclosure don’t automatically apply to FOIA requests citizens have already made. If the court had ruled otherwise, that would have had at least three negative consequences for government transparency.

First, given the time and expense, citizens would become even more reluctant to file lawsuits to vindicate their right to public records under FOIA if they could be denied access to public records because the law was amended to exclude such records after they filed the lawsuit.

Second, an unfavorable decision could have given public bodies an incentive to lobby the legislature to enact new FOIA exemptions when citizens file requests for records a public body does not want to disclose.

Finally, a negative ruling could have further eroded the public’s trust in government. What would an Illinois citizen think upon learning that, yes, she was entitled to certain public records when she made her FOIA request, but, no, she still cannot have the records because, after the agency illegally denied her request, the agency lobbied its friends in the General Assembly to pass a law to justify its denial after the fact?

The Illinois Supreme Court’s ruling that the government can’t rely on new changes in the law to retroactively justify an unlawful denial of a FOIA request is an important step toward giving Illinois taxpayers the full, consistent governmental transparency to which they’re entitled.

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