Harassment Controversies at Illinois Capitol Shine Light on Lax Open Records Laws: Push for more oversight and accountability in Springfield should also include transparency
When President Lyndon B. Johnson signed the Freedom of Information Act (FOIA) in 1966, the legislation solidified how central transparency is to a functioning and accountable democracy. Open records laws at the federal and state levels are grounded in creating a more open and transparent government, which, in turn, earns greater trust among its citizens.
“This legislation springs from one of our most essential principles. A democracy works best when the people have all the information that the security of the nation permits,” Johnson said when signing the legislation into law. “No one should be able to pull curtains of secrecy around decisions which can be revealed without injury to the public interest.”
A half-century later, the average citizen in Illinois is unable to obtain critical records from their lawmakers even though a state law appears to guarantee that right. It’s a concerning status quo especially amid a rat-tat-tat of sexual harassment controversies that has upended the careers of a several powerful players in Springfield. To date, much of the public pressure following those controversies has been rightly channeled into creating stronger watchdog systems to vet harassment allegations and hold perpetrators accountable. But too little thought has been placed where lasting change could also come: improving transparency laws that currently leave much of what lawmakers do in the dark. For example, today, there is no guarantee that emails — where arguably much of a lawmaker’s documented public business takes place — will be released under a FOIA request. Additionally, citizens have limited recourse when they are denied access to public records by lawmakers. In an age of instant messaging, including texting and Facebook, lawmakers should not be shielded by opaque laws that make it difficult, if not impossible, for journalists and citizens to learn more about a lawmaker’s public business – and their work environment. |
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A National Problem Beyond Illinois, the #MeToo movement has shed light on the importance of transparency from our elected officials – and the lack of that transparency. A multitude of individual state exemptions exist that allow state legislatures and executive branches to circumvent FOIA requests. State governments can include immunity from FOIA in their state constitution, too frequently assert attorney-client privilege, and even argue that state lawmakers do not use their government emails for public business. |
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In 2016, The Associated Press tested open records laws and requested professional emails and calendar schedules from all 50 state legislative bodies. The majority, including Illinois, denied the requests. California legislators declined the AP’s requests, citing numerous exemptions including privacy and legislative privilege. Colorado legislators met the AP’s requests, but charged them with a $30 per hour search-and-retrieval fee. Nebraska’s top legislators agreed to release their personal calendars but refused to provide their government emails. When the AP requested emails from Illinois state legislators, reporters were told by state officials that the “requested documents are not public records, as defined by the Illinois Freedom of Information Act, because they are held by individuals who do not constitute ‘public bodies.'” This arguably contradicts the Illinois FOIA, which defines a “public body” as “all legislative, executive, administrative, or advisory bodies of the state.” Recently officials at both the state House and Senate told ICPR that FOIA requests are handled on a case-by-case basis. That leaves a lot of potentially self-serving wiggle room. Importantly, under Illinois FOIA, the legislature has wider latitude to get the final say when they refuse to provide information. That is because denials from the legislature can’t be appealed to the Illinois Attorney General Public Access Counselor like denials from village, county and state agencies. The counselor reviews hundreds of FOIA denials every year free of charge and can force the release of public records that are wrongfully withheld. Proponents of that exemption say to allow otherwise would violate the separation of powers between government branches. But the result leaves filing a lawsuit as the only effective means to appeal a denial, often a prohibitively costly prospect for an average citizen and even the press. |
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Illinois Transparency The Attorney General has routinely found that it is important for the public to have access to communications of public workers and decision makers. In an Aug. 9th, 2016, binding opinion, the Attorney General stated that, “e-mails and other communications exchanged on private accounts, personal cellphones, and other device” pertaining to public business should be subject to FOIA. |
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With an abundance of exemptions, Illinois’ FOIA is complex and difficult to navigate for citizens. Many exemptions, though, are reasonable: when an individual’s right to privacy outweighs any legitimate public interest in the information, Social Security and telephone numbers, and law enforcement records that would interfere with a case or reveal a confidential source.
Yet, the Illinois legislature enjoys protections that are far too broad, unchallenged, and unjustified.
In the end, the state’s central law protecting government transparency falls short of its own definition; Section 1 of the Illinois Compiled Statues states that the act creates a right, with “limited exemptions,” to “full disclosure of information relating to the decisions, policies, procedures, rules, standards, and other aspects of government activity that affect the conduct of government and the lives of any or all of the people.”
When shadows are cast over transparency laws, accountability begins to vanish. Jill Geisler of Loyola University Chicago spoke at the Newseum’s Power Shift Summit on sexual misconduct on Jan. 9th, 2018, and said, “Confidentiality, non-disclosure, and non-disparagement agreements may benefit the organization while harming victims and society. Victims may not be able to warn others. Harassers may re-offend. Organizations may cover up their own complicity.”
FOIA is key to obtaining significant information and documentation, especially when elected officials are accused of crimes as serious as sexual harassment. Still, Illinois is currently able to withhold access to state legislators’ emails, preventing the public from receiving the promised “full disclosure of information relating to the decisions, policies, procedures, rules, standards, and other aspects of government activity that affect the conduct of government and the lives of any or all its people.”
This opaque and complex process of requesting and receiving state legislators’ public records, including government emails, is an issue that ICPR will continue to push for in our goal to increase transparency in government.
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