The flip side of FOIA: Mountains of paper, small government staffs and — for some — an attitude problem
Inside a nondescript warehouse on Chicago’s Southwest Side, rows of white-and-blue boxes sit below flickering fluorescent lights, holding a vast number of documents belonging to Cook County government.
One agency alone, the assessor’s office, has about 12,000 boxes here. Each is stuffed with roughly 40 pounds of paper, things like property assessment appeals from 2009 or certificates of error issued in 2014.
Nearly every weekday, an assessor’s office employee drives to the warehouse, signs in at the front desk, then gets to work searching for the boxes that contain records people have requested under the Freedom of Information Act.
“It’s pretty amazing that you can find one piece of paper or one file among all this stuff,” said Jose Virella, executive assistant to the deputy assessor. “It’s like going into a pile of hay and finding a needle.”
Citizens who exercise their lawful right to obtain public documents through FOIA requests frequently complain that the government is failing to uphold its end of the statute. It can sometimes take weeks or months of persistently following up to get a response on even a run-of-the-mill request.
However, the people on the other end of the process, the ones who have to produce the records, say responding to FOIA requests can be challenging, especially for small staffs. For one thing, the documents are often physically stored somewhere in a vast sea of boxes.
“This is the stuff of government that’s not really seen,” said Scott Smith, the chief communication officer for the assessor’s office, as he navigated through rows of records in the warehouse.
The department — which was the only public agency willing to talk to the Tribune about its FOIA department out of nearly two dozen contacted — receives more than 5,200 FOIA requests annually. That’s more than 14 requests for every day of the year, each of which is supposed to be answered within five business days.
“When we talk about the modernization of the office, when we talk about making our operations more efficient, this is some of the stuff that has to be wrestled with,” Smith said.
However, making FOIA less of a slog in Illinois is not solely about solving logistical obstacles. Lawyers and open-government advocates say there are wider cultural challenges about how FOIA requests are perceived within agencies across the state — a problem far harder to address.
“I’ve preached to public bodies again and again: When you get a FOIA request, the first thing you think of is, ‘OK, what do we have that’s responsive?’ not, ‘Do we have to give up these records?’” said attorney Sarah Pratt, the state’s current public access counselor. She heads a permanent bureau in the Illinois attorney general’s office that’s meant to serve as an intermediary between members of the public and public agencies.
Despite that message about the importance of openness, Illinois has more than enough frustrated FOIA filers to keep Pratt’s office busy.
If a request is denied — not receiving a reply within the mandatory five-day response time also counts — the filer can submit a request for review with the public access counselor. The process is free and just requires sending the office a letter, a copy of the original FOIA request and any communication with the public body.
However, filers say it often takes a long time to hear back on these requests for help.
“I think government has a long way to go, especially in Illinois, especially in the city of Chicago, to be really truly serving the interests of all of its constituents,” said Matt Topic, an attorney who frequently litigates cases related to FOIA.
‘It’s going to take time’
Smith and his colleagues are quick to praise the fundamental goals of FOIA: promoting government transparency and giving the public a means to hold officials accountable. But they also see a disconnect between how the public perceives FOIA and how the requests actually get filled.
“People need to assume less government malfeasance and more government incompetence,” said Justin Kirvan, who until recently was the legal director overseeing FOIA at the assessor’s office. “When you’re looking for paper documents, there’s endless opportunity for the paper not to be found or to be difficult to find. And that causes a huge time suck.”
The assessor’s office has three full-time FOIA officers, two managers and a couple of support staff members. But Kirvan said if someone with a certain specialty is out sick or on vacation, the agency may have to put some requests on hold until the employee returns.
It’s one of the ways a law intended to give power to everyday people can get caught in the cogs of government.
Kirvan also said some people seem to assume all of the agency’s documents are archived online and accessible with a few keyboard taps.
“I’ve often gotten the impression that people think this is basically by magic, like this just happens,” said Kirvan, who worked at the assessor’s office for about two years and was at the Cook County treasurer’s office before that.
Kirvan said that mindset often leads people to make requests beyond the scope of what they may actually be seeking. When possible, he said, the office tries to talk with the requester.
“If we can foresee that it’s going to be problematic, or it’s going to take time, we try to communicate that (and reset) expectations,” he said, “and for the most part, people are understanding. I think when we don’t communicate, that is where we tend to get into trouble.”
Still, the volume of requests at an agency like the assessor’s office makes thorough communication on each one impossible, Kirvan said.
FOIA requesters say they sometimes feel like their requests vanish into a void of bureaucracy, with no way to know what is happening while they wait and few avenues for communication.
Pratt, who has worked in various roles in the attorney general’s office for most of her career, stressed that FOIA has to be seen as “a primary duty of agencies” and FOIA officers need to have the support of their colleagues.
“When FOIA officers have supervisors and managers in an agency who are not making FOIA a priority, obviously, it makes their job more difficult,” she said.
When reviewing FOIA cases, the public access counselor has the authority to issue both binding and non-binding opinions. But the vast majority of the determinations that come out of the bureau, which has 13 full-time attorneys, are non-binding. In 2020, the public access counselor issued just seven binding opinions related to FOIA, and so far in 2021 there have been two, including one in favor of the Tribune on a request related to police documents.
Pratt said the tendency to be conservative in issuing binding opinions is by design. For one thing, she sees the office as an “alternative to litigation,” and binding opinions are subject to legal challenges from agencies.
“It simply wouldn’t be feasible to issue binding opinions on everything, and it’s generally also just not necessary,” she said.
‘Throw open the doors’
Topic, an attorney at the firm Loevy and Loevy, has brought suits over former Mayor Rahm Emanuel’s emails, the video from the night a police officer killed Laquan McDonald and, in federal court, additional portions of Robert Mueller’s report on Russian interference in the 2016 presidential election.
In all these cases, government officials initially refused to release the records in response to FOIA requests.
“Unless you can show that there’s some real significant harm that’s going to come from releasing records, then you should release them, but a lot of stuff doesn’t get released ... because it’s perceived to be embarrassing,” Topic said.
Topic estimates the majority of his clients are journalists, but he also represents advocacy groups and activists, as well as private citizens.
In 2014, journalist and activist Jamie Kalven was the namesake in a ruling issued by the Illinois appellate court determining that completed investigations of police misconduct are public information.
Kalven said the ruling was significant, but there’s much more work to be done on government transparency.
“What (Kalven v. City of Chicago) represents is we were each given a library card that enables us to take out one or two books,” he said. “What I’m saying is, let’s throw open the doors of the library.”
By that, Kalven means he’d like to see a system in which government agencies proactively release redacted documents to a portal of some kind on a rolling basis, rather than everything being tied up in the “rickety contraption” of FOIA.
He makes the case that doing so would not only make government more transparent, but also lead to “considerable downstream savings” and improved customer service.
“It isn’t just about efficiencies and removing some of the friction, it’s also about that qualitative difference between the library card and the library,” Kalven said. “And real, full-blooded commitment to freedom of information as a principle, it seems to me would be about the library.”
Even with a concerted effort, changing the culture and reputation of a government office takes time. Cook County Assessor Fritz Kaegi has promised to improve transparency during his tenure, including improvements in how the public can access records. In early 2020, the office implemented an online portal used by some other public bodies that’s meant to make it easier for people to track the progress of their request.
In a few years, they’d like to have far more of the records stored digitally and publicly available so people can search by property index number and pull documents related to that property without having to file a FOIA request.
“Obviously, if we had our druthers, and we could do all this with a snap of the finger, we would make all this available to everybody without submitting a FOIA,” Kirvan said. “I mean, we’re looking into that in the next year, two years, three years, but right now, we’re in a sort of transitional period.”
In the meantime, the requests keep coming, and the trips to the warehouse continue.
