Without publicity no good is permanent; under the auspices of publicity, no evil can continue. — Jeremy Bentham, 1768
Alright class! Settle down. I know this isn’t the most thrilling topic but we have a lot to cover. Considering how a local newspaper has managed to screw up multiple FOIA requests and the rabble continues to insist on demanding information to which they’re not entitled, let’s set the record straight.
We’ll start with the happy truth that the majority of public bodies honor both the letter and the spirit of the Illinois FOIA statute. It’s the few that try to manipulate it that give the process a bad name.
For reference purposes, of the Kane County public entities I’ve FOIAed, these are the worst when it comes to responding:
- Village of Carpentersville
- Kane County State’s Attorney’s Office (under Joe McMahon)
- City of Geneva
- Batavia Police Department
- City of Aurora
- Aurora Police Department
Geneva and Batavia are far less likely to try and pull something if you know your stuff, but as far as numbers two and three go, they’ve consistently behaved as if the law doesn’t apply to them. They’re eclipsed, however, by the Village of Carpentersville’s often outright refusal to answer FOIA requests, despite being told to do so by the Attorney General.
The top FOIA responders include:
- Kane County Sheriff’s office
- Kane County Board office
- Elgin Police Department
- Kane County Clerk, Circuit Clerk, Auditor
- Most school districts
It’s not that school districts are necessarily less nefarious than any other local concern, it’s that their FOIA officers haven’t learned how to play the typical games with requests.
Let’s move on to three recent FOIA requests that had/have no chance of success, two of which were issued by the Kane County Chronicle.
Oddly enough, when their FOIA’s we’re denied and they were similarly shot down on appeal, the Chronicle actually reported on those absurd setbacks. This, of course, begs the question, how do you continue to call a newspaper’s competence into question when they’re doing a bang up job of it themselves? Suffice it to say there’s no excuse for a newspaper to issue an ill-fated request and then to be ignorant and arrogant enough to appeal that denial.
without further ado, here the doomed FOIAs:
1. Personal information is always exempt!
Anyone who’s ever FOIAed a police report already knows you’re entitled to the name of the accused and the majority of the contents of said report. That’s it! Addresses, phone numbers, victim(s) names, and witnesses names will likely be redacted. And if the accused is a minor, their name will also be redacted.
That means that when the Chronicle FOIAed the grades of the Kane County IT Department employee who received tuition reimbursement at DeVry, they were dead in the water.
You can ask for a public employee’s salary, their benefits, and their job description, but you can’t ask for their address, phone number, bank account data etc. because the privacy exemption applies. Before filing a FOIA ask yourself the question, “Is it the in the public’s interest to know that information?”
So, when the Chronicle petulantly FOIAed that IT staffer’s grades and appealed the inevitable denial, it was a complete waste of everyone’s time. How could that information possibly move the story along?
To be fair, Kane County initially got it wrong when the claimed they no longer had those grades and the Attorney General’s office was not amused. But after this journalist provided the State’s Attorney and Chairman with the logic for applying the privacy exemption, the AG upheld the County’s denial.
2. Deliberations are always exempt!
This is where so many citizen FOIA requestors go astray, but there’s no excuse for a newspaper’s failure to understand this very basic rule.
When the Chronicle FOIAed any communication between the State’s Attorney and the County Board in regard to that tuition reimbursement, it underscored their vast ignorance of the statute on two levels.
The first is, just as it is in any courtroom, communications between an attorney and their client are virtually NEVER discoverable. Thus, when State’s Attorney Jamie Mosser advised the board on the legality of those tuition payments, since she was acting in her role as the County Board’s attorney, those discussions were not subject to a FOIA request.
The KCSAO could’ve also successfully argued that they were deliberatory communications en route to making a final determination.
What is subject to a FOIA request? The result of those deliberations, and the KCSAO correctly turned over the letter Mosser sent the County Board absolving the IT department of any wrongdoing or ethical breach.
Proving that public embarrassment won’t stop them, the Chronicle also appealed this denial, and once again, the Attorney General’s office shot them down in no uncertain terms. One of Shaw Media’s publishers tried to save face by claiming they were “considering their options,” but there aren’t any. Once the AG rules against you, you’re done.
3. Personnel issues are always exempt
This FOIA exemption comes into play regarding Geneva (D304) Middle School North principal Brenna Westerhoff’s recent “resignation.” The usual Facebook suspects insisted they’d get to the bottom of this story through a few strategically placed FOIA requests, but trust me, they won’t.
Again, their problems start with the deliberatory process exemption.
Think about it! If a public official’s or a public body’s thought processes were subject to the FOIA statute, particularly in regard to firing an employee, the wheels of local government would grind to a halt. Those fine folks must be free of disclosure encumbrances in order to effectively function and make good decisions.
Though it’s important to note that they can’t violate the Open Meetings Act in the process of those deliberations.
But the far greater FOIA issue with our departing principal is, with rare exception, anything that goes into a personnel file is exempt, and that’s particularly true for disciplinary measures, letters of reprimand, and annual reviews.
I’m NOT saying Westerhoff was ever warned or disciplined because I have absolutely no clue. But if she was, that information is not subject to a FOIA request.
So, what isn’t exempt? Any non-official communications regarding the former principal, which generally means emails. For example, if a parent sends D304 an email complaint about a staffer, that missive would be subject to a FOIA request, as are most of a public body’s emails.
Non-official email between a school district’s employee is also discoverable, but with the notable exception of Geneva Mayor Kevin Burns, most public bodies understand the perils of email communications and avoid all the obvious pitfalls.
Not only that but given the volume of emails a public entity sends and receives on a daily basis, those kinds of FOIA requests can be a very difficult proposition. Be too broad and they’ll use the “overly burdensome” exemption to deny it. Be too specific and you probably won’t get what you want.
How to correctly craft a FOIA request is a topic for another class.
Much like it was with Mosser’s report to the County Board, the result of their deliberations – the separation agreement between D304 and Westerhoff – is FOIA-able. But aside from the terms of any monetary settlement, it’s not likely to tell you very much.
The bottom line? While a well-worded FOIA request can be an effective public or press tool, there are stark limitations to the process. Regardless of the rabble’s often overeager thoughts, no amount of FOIA requests will ever fully solve the riddle of the former Principal’s departure. That’s when a journalist must rely on their sources.
One more thing before I let you go. In an effort to truly be transparent and make their lives a little bit easier, most public bodies put a slew of information out on the Net. All it takes is a simple Google search to find budgets, invoices, payments, meeting agendas, meeting minutes, and much, much more.
So, unlike the Chronicle, please don’t waste everyone’s time by issuing a FOIA request for something that’s already posted on the Web because a public body will have to respond regardless.
Alright! Class dismissed! Go forward and FOIA responsibly and competently.