by James W. Fessler and E. Kenneth Friker

On August 17, 2009, Governor Patrick Quinn signed Senate Bill 189 which has now become Public Act 096-0542 and which will become effective on January 1, 2010.  The Act revises the Illinois Freedom of Information and Open Meetings Acts (5 ILCS 140/1, et al. and 5 ILCS 120/1, et al., respectively).  These revisions impact all units of local government in Illinois, including both Library Districts and Public Libraries.
In signing the bill into law, the Governor stated:

“I am pleased to affix my signature to Senate Bill 189.  With my approval, this landmark legislation becomes the law of our State.
I commend the members of the Illinois Reform Commission, the Illinois General Assembly, and the Attorney General for their work on this issue.

I am delighted to preside over the enactment of one of the more significant pieces of reform legislation in our State’s history.  Transparency in government has long been one of my core priorities.  With this bill, this goal is now a reality.  The Freedom of Information Act and the Open Meetings Act have been strengthened.  Moreover, disputes over the release of public information can be resolved definitively with binding decisions.

No piece of legislation is perfect.  I am cognizant that there are significant concerns about the effect of this bill upon law enforcement and local government.

I note that the effective date for this bill is January 1, 2010.  The process of implementation will necessitate additional legislative work.  It is my express desire that all parties impacted by this bill work collegially in the coming months to craft consensus legislation that addresses the significant, lingering concerns.  As this bill promotes transparency and accountability, so too must the process of implementation be inclusive and transparent.”

The Act strengthens accessibility to public information and increases the transparency of public bodies.  The Act also creates more straight guidelines for public bodies to follow the Freedom of Information and Open Meetings Acts.  While the Act primarily revises the Freedom of Information Act (FOIA), it also impacts the Open Meetings Act (OMA) relative to training and the Illinois Attorney General’s Office’s role in reviewing claims of violation of both Acts, and creating a role for the Attorney General’s Office in administering FOIA.
Key elements of the Act include:

• Establishing a Presumption of Transparency.
• Shortening the Time for Public Bodies to Respond to FOIA Requests.
• Authorizing Enforcement by Public Access Counselors.
• Narrowing and Clarifying the Personal Privacy Exemptions.
• Requiring Heightened Scrutiny When Public Bodies Seek to Use Privacy or Preliminary Draft Exemptions.
• Limiting Copying Charges.
• Ensuring Significant Consequences for Failing to Respond to FOIA Requests.
• Establishing Staff Penalties for FOIA violations.
• Requiring Court Awarded Attorney’s Fees to FOIA Requestors Who Prevail in Litigation.
• Requiring Public Bodies to Produce Records in Electronic Format.
• Requiring Annual FOIA and OMA Training.

During the next four months, your library, its trustees, administrators and staff should endeavor to learn and understand the revisions to the Freedom of Information and Open Meetings Act as January 1, 2010 is rapidly approaching.  To that end, we recommend that you obtain a copy of Public Act 096-0542 and consult your library counsel.

E. Kenneth Friker and James W. Fessler are partners with Klein, Thorpe and Jenkins, Ltd., a law firm with offices in the Civic Opera Building at 20 North Wacker Drive in Chicago and at 15010 S. Ravinia in Orland Park.  The firm concentrates in the representation of local libraries, Library Districts and Library Systems, as well as other local governmental units.

Published September 23, 2009 in vol. 3, iss. 18 [View]