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On Dec. 11, 2017, City Council adopted a revised Freedom of Information Act (FOIA) Policy proposed by the City’s staff, rather than one proposed by City Clerk Devon Reid. In addition, City Council decided not to post financial disclosure filings for members of the City’s Boards and Commissions on the City’s website.
The City uses a system called the NextRequest system to process and respond to FOIA requests. The NextRequest system contains a feature that can make FOIA requests and the City’s responses available to the general public and searchable on the internet. Due to privacy concerns, City Council decided on Sept. 25 to temporarily disable this feature.
Since then the City has been using the system to process and respond to FOIA requests, but the responses have been provided only to the person who made the requests, and the FOIA requests and the documents provided by the City in response to the requests have not been made available to the general public.
Differences in the Two Proposed FOIA Policies
The difference between the two proposed FOIA Policies centered on whether or not the FOIA requests and the documents provided by the City in response to the requests would be made public on the City’s NextRequest system and thus available on the internet to the general public.
The FOIA Policy prepared by City staff proposed to give responsive documents only to the person who made an FOIA Request and not to publish either the request or the responsive documents on the City’s Next Request System in a way that would made them available on the internet to the general public.
City attorney Henry Ford told City Council that the City’s obligation under FOIA is to provide documents in response to an FOIA request to the requestor, and that there is no obligation under FOIA to publish requests or the documents provided by the City in response to a request on the internet for everyone to see.
City staff’s proposal contains the following two provisions:
• “The City will comply with the [FOIA] request by providing responsive records to the requestor only, or as the case may be, deny the request as required by 5 ILCS 140/3 through 140/3.3”
• “For every FOIA request, the City’s FOIA officer(s) must use NextRequest in a way that records responses and responsive documents released can only be viewed by the requestor.”
Neither of these provisions was included in Clerk Reid’s proposed FOIA policy. Instead, he proposed that the following two statements be included in the City’s FOIA policy:
• “All requests will be restricted from public view until seventy-two (72) hours after the delivery of response unless otherwise directed by the Requestor. Request for singular or personal police records will be released only to the requestor.”
• “The City Clerk will make publicly available on the NextRequest system, the FOIA requests submitted to the City, grouped by request category only. However, pursuant to 5 ILCS 140/1, no personally identifying information of any requestor, will be unrestrictedly published on the NextRequest system. [This [FOIA] Act is not intended to cause an unwarranted invasion of personal privacy.]”
Alderman Don Wilson, 4th Ward, said he preferred the version prepared by the City’s staff and law department. Referring to Clerk Reid’s proposal that requests would be made public unless the requestor directed otherwise within 72 hours of receiving the City’s responsive documents, Ald. Wilson said he was concerned about publishing FOIA requests on the internet because the requests themselves may contain personal information, and people making the FOIA requests may not realize they need to affirmatively ask that their request not be made public in order to keep it from becoming public.
As an example, he said, a person may make a request for all documents relating to a victim that happened on certain date. If the personal information is contained in the request field itself, he said, then the Clerk’s proposal does not solve the problem.
Ald. Wilson added, “I think it’s just better to stick with releasing to the requestors only and keeping it as it is.”
Clerk Reid responded that his office has been regularly receiving FOIA requests for all of the FOIA requests submitted in a prior period, and “according to FOIA staff, we have to release the name of the requestor, what the requestor requested, if the person so asked, and all of the responsive documents.” He said his staff has to respond to those requests.
Ald. Fiske, said, “I agree with Ald. Wilson.” She also recommended that the City appoint a representative of the City’s law department to be the “secondary” FOIA Officer with the City Clerk. That motion failed for lack of a second.
Alderman Cicely Fleming, 9th Ward, said she did not like the Clerk’s proposal to automatically post an FOIA request on the internet unless the requestor opted not to have it posted “because I don’t think people are in the habit of remembering to opt out, and the system at this time does not have an option for you to opt out.”
Ald. Fleming added, “If I do an FOIA, I might not want my neighbors to know that I’m looking at that. If I want to look up something that is private, but I have to FOIA it, I may not want everyone to know that’s what I’m looking for.
“I want to respect women who come in for domestic violence or any other thing that they’re coming in for, that their name is not listed there as Cicely Fleming came in to get her domestic violence report. I don’t want someone deterred from using FOIA if they need it because their name is now made public.”
Clerk Reid said, “If someone comes in for individual records, individual police reports that those will not be made public. So the scenario you brought up wouldn’t happen under the policy that I propose.”
Mayor Steve Hagerty said if someone FOIAs the Mayor’s emails for the last week, and someone wrote about a terrible incident that his daughter is having at school, that email would be public.
“The new policy that you’re proposing is that, with the exception of police reports and things that are redacted, all of the responses would be public, meaning it just doesn’t go to the requestor, but it goes to everybody, and it’s open to the world. Anybody can come and see all of the emails.
“People email not just me, but all of the folks up here and other people in our government, all sorts of emails about ‘I’ve lost my job, can you help me, is there something in the City or something else around town. My son or daughter … Let me tell you about my neighbor …’ And it’s okay if you FOIA us, but the question is, should that be available and put out publicly to the whole world?”
Clerk Reid said an “unwarranted invasion of personal privacy” is an exception to the FOIA.
Mayor Hagerty said that is placing a lot of trust that private information would be properly redacted.
Posting Financial Disclosures
Ald. Wilson moved that the FOIA Policy prepared by City staff be approved, but to delete a provision that would have required the City to post on its website financial disclosure filings of members of City Boards and Commissions.
He said, “It’s one thing for us as elected officials. It’s another thing for someone who volunteers for two sessions on some small committee, or once a month, or once a year, to have all their stuff published on a website that’s out there for people to find on searches. It seems to me that’s stretching the limits of transparency.”
Clerk Reid responded that if a member of a City Board or Commission is dealing with the allocation of City resources, the public should have easy access to that person’s financial information. He added, “If someone can come into the office and get it, we might as well put it online for folks to get.”
Ald. Wilson’s motion passed 8-0.