Madigan embraces new era of government transparency

Illinois Attorney General Lisa Madigan Wednesday championed the new Freedom of Information Act set to take effect Jan. 1 as "the most significant reform measure passed by the legislature and signed by the governor this year" in an address at the Chicago-Kent College of Law.

"This is the basis of our democracy," Madigan said.

"There has been no transparency in Illinois," added Cara Smith, Madigan's deputy chief of staff. "FOIA has had no teeth."

Madigan said the new law shifts the legal burden from citizens and media requesting government documents to governing bodies trying to keep them from public view. "When balancing privacy against disclosure, there's a presumption in favor of disclosure," she said.

Yet the real enforcement, she added, comes in the form of strengthening the position of public access counselor she created in her first term. The counselor, likely to be a lawyer in the AG's office who will report directly to Madigan, will issue binding opinions on all contested FOIA requests, with subpoena power and the ability to file suit to enforce those opinions, which will be signed by the attorney general.

"The binding opinion is a tremendously significant tool," Smith said, "to really bring teeth into this."

The public access counselor will also rule on cases involving the Open Meetings Act, and the new FOIA will enforce a five-day response period, with any failure to respond considered a denial and eligible to be referred to the counselor.

Those who request a FOIA document and are denied can also file suit directly, as they have in the past, but with the new stipulation that the government agency will pay their court costs and attorney fees in any FOIA case it loses or otherwise fails to comply with. It will also be liable for civil penalties.

Smith called that "a tremendous incentive to comply ... completely lacking in the first law."

Madigan said the strengthened FOIA would have been unthinkable before then-Gov. Blagojevich's arrest last December, but that it swept through the legislature - with much input from media groups and other government watchdogs - in the call for reform after his impeachment and removal from office.

"Gov. Blagojevich made secrecy and not sunshine the default position," Madigan said, "but it is a problem at every level (of government)."

Smith said she expected a flurry of FOIA appeals to the public access counselor early next year, but that things should smooth out at as governing bodies realize the new way of doing things.

"There might be a rough road for a while, but we're going to get there," she said. "This is going to be an evolving process, and we're thoroughly committed to making it work."

The officials did not name any candidates for the new position, but allowed that person would need to be kept as independent as possible.

"I don't think it will be a political appointee," Smith said.