Mayor’s New FOIA Amendment Compromises City’s Transparency & Compliance

A resolution pending for tonight’s Council meeting injects new challenges to the City’s ability to release public records under the Freedom of Information Act. The amendment, proposed in a memo by Mayor Steve Hagerty, largely shifts FOIA authority from the City Clerk to the City’s law and police departments and, to a lesser extent, the City Manager’s office, prompting an oppositional petition by residents.

If approved, the unprecedented change primarily places the authority for disclosure of public records in the hands of attorneys who are required by the Ill. Supreme Court Rules of Professional Conduct to “to make reasonable efforts to prevent” access to certain client records, particularly those potentially damaging to the City’s corporate authorities and top management. Specifically, the assistant attorney under the City’s Corporation Counsel would be charged with processing redactions for all FOIA records released, and for providing or denying law department records.

In departure from the Mayor’s inaction in addressing allegations that the City’s law department’s has unlawfully withheld FOIA records from the public, this recommendation comes just weeks after the City’s current FOIA officer, Clerk Reid, requested judicial intervention in the matter, and in associated issues. The Ill. Attorney General is currently investigating 18 Evanston FOIA cases.

Competing Duties & Interests

FOIA disclosure is broadly at odds with expectations of attorney confidentiality. While FOIA generally favors full disclosure: “all persons are entitled to full and complete information regarding the affairs of government,” attorney rules place heavy restrictions on disclosures that are potentially adverse or disadvantageous to a client—or in this case, adverse to City authorities. Attorneys must even “make reasonable efforts to prevent” access to client information, with limited exceptions, and to prevent those under their supervision or authority from disclosing such information.

Primarily ServesPublic InterestClient’s Interest
ObjectivePromote “transparency & accountability” of public bodies “Protect & pursue” client’s interests
Presumes City records areOpen to public, unless otherwise proven by clear and convincing evidenceConfidential, unless otherwise authorized or required
Disclosures Adverse to City AuthoritiesRequired, with limited exceptions. “Necessary to ensure government acting in public interest”Prohibited, with limited exceptionsLawyer required to make effort to prevent access and disclosure

Sources: Ill. Freedom of Information Act and Ill. Supreme Court Rules of Professional Conduct

Memo Summary

The Mayor proposes adding the additional FOIA officers “given that FOIA requests have doubled over the last two years.” Despite that, Clerk Reid says he was never consulted or brought in to provide insight on the issue, or on potential remedies. Reid also points out that if the Mayor’s objective was to deal with the increased number of requests, his memo doesn’t point to any resulting increase in FOIA delays compared to previous years.

Proposed FOIA Changes

Currently AuthorizedAs Amended
Processing Redactions & Exemptions for all FOIA RequestsClerk’s OfficeLaw Department
Requests for Legal Records Clerk’s OfficeLaw Department
Requests for Police RecordsClerk’s OfficePolice Department
Law Department
Remaining RequestsClerk’s OfficeClerk’s Office
Law Department
Remaining Requests (secondary)Clerk’s OfficeCity Manager’s Office
Law Department

The Mayor’s memo also states the appointment of multiple FOIA officers is “consistent with the City’s past practice of having more than one FOIA officer,” and with “many of our similar peer and surrounding communities.” And though Evanston has held multiple FOIA officers, those officers have all been limited to the City Clerk and Clerk staff, given City Code mandates “the City Clerk shall be the custodian and keeper of all the books, records, ordinances and papers of the City.” Only one of the municipalities listed in the Mayor’s memo, Arlington Heights, designates law staff as FOIA officer, though the Village Clerk serves as compliance officer and ensures access to Village records.

Attorneys must take reasonable efforts to prevent access to client information, and to prevent those under their supervision and authority from disclosing such information.

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