In recognition of Sunshine Week, Small Newspaper Group Statehouse Bureau Chief Scott Reeder interviewed Attorney General Lisa Madigan, who is pushing for a rewrite of the state’s Freedom of Information Act. Sunshine Week runs Sunday through Saturday, March 21, and is a time set aside to lobby government for greater openness.

Among Madigan’s proposals are:

• Fine governmental bodies that fail to comply with a open records request $100 to $1,000.
• Place the burden on the governmental entity in proving a particular record is not subject to public disclosure.
• Protect government employees from retaliation from supervisors if the employee wants to properly disclose public records.
• Authorize judges to order governmental bodies to pay attorneys’ fees for anyone who goes to court to fight a public-records denial and ultimately wins the case.

During her six years as Illinois attorney general, Madigan has pushed for greater public access to public records. Among her accomplishments are the creation of a public access counselor position, to advocate for transparency in government.

Below are excerpts from that interview:

Scott Reeder: What do we need to do to have more sunshine here in Illinois? We were the 50th state in the nation to get a FOIA law in the first place, and it’s widely regarded as a weak one.

Attorney General Lisa Madigan: I think there are two big problems with FOIA law. One is that we have exemptions you could drive a truck through. The other is FOIA law is unenforceable with no penalties. We have got to change both of these things so our FOIA is actually effective.

We are very hopeful, that in this unfortunate environment that we find ourselves in, in the state of Illinois, that it creates at least an opportunity to address what has long been a culture of secrecy emanating out of the former governor’s office, and that has also taken hold in far too many government bodies, of not providing people with the information that is really their information. Those of us in government work for the people of the state. We don’t work for ourselves, and people need to recognize that and act accordingly and follow the law.

Reeder: So how do you get people in government to obey the law?

Madigan: The vast majority of people who are responsible for enforcing the law have never even read the law. So what we have done out of the public access counselors’ group is probably some 200 trainings in the past few years.

We’ve been doing training, but one of the things we want to do is make sure training is available electronically at no cost, or at least no direct cost, to government bodies and to people who are the public information officers.

Unfortunately I think in the state of Illinois, we also need penalties. We have heard repeatedly from individuals who work for state agencies as well as others who basically said not only do we deny requests under FOIA because there’s no penalty, but we don’t even respond to requests because there are no penalties.

Reeder: One of the things I’ve noticed over the years that seems to be a challenge is outside of Cook County, the state’s attorney acts as the civil attorney for the counties as well as the prosecutor. So, if you make a request, often the response you’ll get back is from the state’s attorney in his civil capacity. And if you’re unhappy with the answer, you don’t have a person to go to.

Madigan: Right. That’s one of the major reasons for having a public access counselor. We wanted an entity that existed to help members of the public, to help the government officials, to help the media when confronted with enforcement of FOIA and enforcement of the Open Meetings Act. And we wanted that person to be somebody who isn’t beholden to one side or the other. And what we have seen is just an incredible level of need for this position.

The people who need it the most are average citizens. And that’s why we wanted a public access counselor. But, one of the things our bill would do is also give the public access counselor standing, so if there is a violation out there, they can bring a suit.

Reeder: The reason the exemptions in the state FOIA exist is that there are so many different interest groups in Springfield wanting themselves written in. What’s to keep that from happening this time around when you rewrite the FOIA?

Madigan: Listen, everybody has a different theory on exemptions. And I think the easy thing to say about them is that there’s too many of them.

One of the best examples I have right now is there’s a school district that is arguing in front of the Illinois Supreme Court that a school superintendent’s contract is not FOIA-able because it is literally inside the personnel file. That sounds crazy but it’s true. So the extension of their argument is any shred of paper you put in that personnel file would then be protected from FOIA. Obviously, that’s not the intent of that exemption, but that’s how it’s being used. So we see that exemption being abused with great frequency.

Reeder: Do you think the public’s attitude about government openness has changed over the years? It seems like we have a pendulum, it swings between a call for privacy to a call for more openness.

Madigan: I think it depends on what the nature of the issue is. Let’s go back to the exemptions that you were talking about. There are a number of exemptions that were put into law in the aftermath of 9/11 for national security purposes. Ok, that makes sense. But the environment right now in Illinois is one of disillusion and distrust and a belief the people of the state were betrayed in large part because information was kept from them.

Reeder: How optimistic are you that we’re going to get something through the Legislature this year?

Madigan: I’m actually quite optimistic, maybe I’m naïve. Again, the environment in Illinois is such that the public demands change. They demand reform. They are demanding more openness and transparency, and they deserve it. The legislature, as representative of the people of the state, recognizes that and hopefully will act in accordance with that. I think it’s going to be a very different year under the dome in Springfield than it has been for the last six, because legislators are going to be held accountable, and these are some of the very basic reforms that need to be implemented for us to change the culture of our government.

Reeder: Where does the governor fit into this? Has he said specifically he would support FOIA reform law?

Madigan: Listen, his history has been that he has supported open government, so I don’t see any reason why he wouldn’t continue to be supportive of these types of reforms. He’s certainly aware I have proposed these laws and I’ve spoken with him. I can’t imagine that he would not be supportive when these bills reach his desk.

Reeder: I’ve got to ask: Made up your mind on whether to run for governor?

Madigan: Wow, I’m trying to get my bills passed. No, I have not.