Aug. 27, 2012

By Jayette Bolinski

SPRINGFIELD – Gov. Pat Quinn and his staff may tell you about the sausage that is Illinois policy, but they aren’t quite as open about the sausage-making process, according to a review of public records requests by Illinois Watchdog.

Quinn’s office cited the “preliminary drafts” exemption to Illinois‘ open records law in one out of four Freedom of Information requests between April and July, enabling it to withhold documents that could shed light on a range of high-profile policy decisions.

Quinn’s office withheld records about prison and developmental-center closures, consolidation of state police communications centers and shutting down animal disease testing facilities – each of which has affected taxpayers and the economy all over the state.

The “preliminary drafts” exemption was designed to allow policymakers to communicate honestly and openly without the risk of embarrassment. It allows officials to withhold “preliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated.”

Quinn’s office may be using the exemption as it was intended, said Springfield attorney Don Craven, who specializes in open government matters. The problem, however, is that the broad exemption leaves taxpayers in the dark about the decision-making process. Illinoisans have no clue what factors were or were not considered in any given policy decision.

“Why did they come to the conclusion to close Jacksonville (developmental center)? You can’t tell what policy considerations went into that decision. You can’t tell what policy considerations were rejected as part of that decision-making process,” he said.  “And all the administration gives you is, ‘We think Jacksonville should close; therefore, it closes.’ And it causes severe frustration.”

Quinn spokeswoman Brooke Anderson said the “preliminary drafts” exemption has been part of the state’s open-records law for decades and that it allows “free and frank discussion among policy and decision makers” and “a wider range of ideas that could lead to more effective public policy.”

Anderson noted that final decisions are available under the law.

“Under Gov. Quinn’s direction, we work to be as transparent as possible. The governor’s office receives a high volume of FOIA requests, with many containing complex issues,” she wrote in an email to Illinois Watchdog. “We carefully review, analyze and respond to each request in a transparent fashion and as quickly as possible.”

Quinn’s office received an average of 17 FOIA requests a month between January and July, according to records supplied by the office. Of 77 requests it processed between April and July, the office cited the “preliminary drafts” exemption 19 times. Between January and July, it cited the exemption 23 times.

In addition to withholding records about some of Quinn’s major closure decisions, since January his office cited “preliminary drafts” in withholding records about:

• A third airport in Chicago.
• A Department of Children and Family Services contract.
• Hospital tax exemptions in the state.
• A contracted review of hiring practices under the Rod Blagojevich administration.
• One of Quinn’s nominations to the state’s tollway board.
• A review by the Illinois State Police of its consent-search policies.

It also withheld communications among Quinn’s staff about the location of a southern Illinois news conference in July, at which state workers showed up to protest Quinn’s planned facility closures.

Quinn’s FOIA officer, Benno Weisberg, is based in Chicago. He has been an “associate general counsel” to Quinn since February. Anderson said he also is a legal liaison between the office and 10 state agencies. His salary is $72,000 a year.

In Illinois, individuals whose records requests are denied may ask the state attorney general’s public access counselor to review the denial. Since January, the public access counselor has received 16 requests to review FOIA denials by Quinn’s office, of which six were for denials citing the “preliminary drafts” exemption.

Craven said about once a week he hears from frustrated reporters new to Illinois who received a “preliminary drafts” denial from a public body for records they were able to review easily in other states.

“They say, ‘I can’t believe the way the laws work here,’ to which I respond, ‘Welcome to the Land of Lincoln,’” he said.

It’s unclear if there is a happy medium to the exemption that would satisfy both public officials and the public’s right to know.

“In order to get to a happy medium, you have to have a conversation. And I don’t know anybody on the other side of the table from where I am who wants to have a conversation about that exemption,” Craven said. “They like it just the way it is.”