Next to waiting for the cable TV installer, there’s not much more irritating for us first-worlders than waiting for the public records that never come.
Many state open-records laws require an agency to respond to a request for public documents within three, five or 10 days. But government agencies typically treat those mandatory legal requirements with all the gravity of the “do not remove under penalty of law” tag on a mattress. It’s not uncommon for freedom-of-information requests to celebrate multiple birthdays sitting in some inattentive bureaucrat’s “in” box.
Short of filing a lawsuit and asking for an award of attorney fees, is there any way to impose consequences on foot-dragging agencies?
In January, a reporter from the suburban Chicago newspaper, The Southtown Star, filed a request with Chicago State University for public records including receipts from credit-card purchases for which the university president’s and trustees received reimbursement. When days went by with no response, he emailed the university a reminder, which was acknowledged. Then he waited.
And waited some more.
Taking advantage of an Illinois law that allows for review by the Public Access Counselor in the state attorney general’s office — a useful dispute-resolution mechanism that more states should have — the reporter filed a complaint seeking a ruling. Chicago State not only blew off the reporter — they blew off the attorney general, too, failing to respond to the Public Access Counselor’s letter.
Predictably, that didn’t go so well.
In June, Attorney General Lisa Madigan ruled that the university broke the law by failing to provide a timely response. In addition to a directive to make a full response, Madigan’s ruling carried a sting: All fees for gathering and copying the records are waived.
The Illinois Freedom of Information Act expressly says that a failure to timely respond to a request within the allotted five business days means that the agency cannot charge a fee for compliance and cannot object that the request is burdensome or time-consuming. That’s a powerful motivator.
Rhode Island has a similar statute: if the agency doesn’t respond within 10 business days, then all search and retrieval fees are waived.
If your state doesn’t have a “delivered on time or it’s free” public-records state, contact your state freedom-of-information commission or your state press association and make reform of the statute a priority. Government officials know they’re unlikely to be sued, so mandatory fee waivers are realistically the only way to add bite to those otherwise toothless compliance deadlines.