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Monday, April 23, 2018

FOIA Bill Would Require $7,500 Escrow For All Denials, Among Other Changes

A reader pointed out a FOIA bill that would certainly impact Illinois local governments, if enacted. HB 5742 would amend the Freedom of Information Act in the following ways:

1. Recurrent Requesters. It proposes to amend the definition of "recurrent requester" to exempt requests made by members of the General Assembly. It would also exempt requests made for the purpose of accessing and disseminating information pertaining to public policy and the administration of state government.

2.  Deliberative Process/Draft Documents. It proposes to amend the exemption from FOIA for draft records and records that formulate policy in two ways. First, it would limit the "deliberative process" exemption to records where opinions of the public body or its agents are expressed. Second, the exemption would not apply to preliminary records expressing opinions if the records were produced in connection with a report that is required to be publicly produced by the agency of the executive branch.

3.  Denial "Index". For every denial of a public record, this bill would require the public body to produce an "index" that includes a description of each document withheld or redacted, the date the withheld or redacted document was created, the author and recipient of each such document, and a statement of the exemptions claimed for each individual withheld or redacted document.

4. Escrow for Denials. One of the more troubling proposed changes would require a public body to place in escrow in an interest-bearing account $7,500 for each request that is denied by the public body. That escrow would remain in the fund for at least 60 days after the denial, or until after the PAC completes its review if an appeal is filed with the PAC or until a circuit court issues an opinion if an appeal is filed with the court. If a determination is made that the public body improperly denied a request, the funds will be awarded to the requester. 

5. Liability. Currently, public bodies are not liable for penalties if it discloses a record in accordance with a PAC opinion. If passed, this bill would exempt the "escrow" award from this immunity provision. 

It's not clear whether this bill has any traction, since it has been sitting in committee since February. But, since it has significant financial implications for all public bodies in the state subject to FOIA, including municipalities, school districts, park districts, libraries, townships, etc., it is worth bringing to your attention.

Post Authored by Julie Tappendorf


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