by David Porter
The timing was apropos when Attorney General Lisa Madigan issued a binding opinion regarding the disclosure of invoices between attorneys and the public bodies they represent. The opinion is dated March 12, which marked the beginning of National Sunshine Week.
Sunshine Week draws awareness to laws such as the Freedom of Information Act, Open Meetings Act and Reporter’s Privilege Act. While Madigan’s opinion is a ray of sunshine, we can’t ignore the storm warnings as a few legislators continue to chip away at the public’s access to public records. In Illinois, there are about 50 FOIA and OMA bills pending including “shell” bills, which are essentially placeholders that can be amended later.
The state’s FOIA declares that transparency is public policy in Illinois and that “all records in the custody or possession of a public body are presumed to be open to inspection and copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt.” Yet, within days of being enacted two years ago, the Act was modified to create additional exemptions.
The recent opinion from Madigan’s office is that invoices for attorney services to public bodies are not automatically exempt under the attorney/client privilege. While invoices may contain privileged information, that information can be redacted and all other information must be disclosed under FOIA.
Specifically, Madigan stated that “a general description of the nature of services the billing attorney performed, the attorneys’ initials, the time spent on the tasks described and the rate and dollar amount charged” are not privileged and cannot be withheld.
Some of this may seem like mumble jumble and only of concern to reporters who want access to everything, but it might surprise you to know that the vast majority of FOIA requests are filed by the general public. In 2010, the attorney general’s office handled more than 5,200 FOIA complaints. Of those, 91 percent were filed by the general public or other non-media entities such as government officials.
The only way to keep government honest and accountable is to keep it open. That’s why governmental records are called “public documents,” not “secret archives.”
David Porter is director of communications and marketing for the Illinois Press Association, which represents the interests of nearly 500 newspapers in Illinois.