DeKalb’s city council both introduced and passed a Freedom of Information Act policy last night.
Yes, there was a rush to put into place a FOIA policy written by city attorney Dean Frieders, who is proven to have trod upon the Open Meetings Act previously. As you might well guess, there are also problems with the new policy, and by this I mean the city has placed a seal of approval on illegal acts.
Problem 1: The policy allows the city manager to change it “from time to time.” This is a legislative function; only the council can change policy. That’s because public deliberation is required. If the city manager changes anything without public discussion and a vote by council, she commits an Open Meetings Act violation.
Problem 2: The city is trying to create new exemptions to FOIA by placing this territorial message on the bottom of each email:
This is a transmission from the City of DeKalb that is confidential and proprietary. If you are not the intended recipient, copying or distributing the contents of this message is expressly prohibited. If you have received this message in error, please destroy it and notify the City immediately. This email is the property of the City of DeKalb and the City reserves the right to retrieve and read any message created, sent or received, including the right to monitor messages of City employees or representatives at any time, without notice. Freedom of Information Act Requests submitted electronically shall only be accepted when submitted to email@example.com (for general requests) or firstname.lastname@example.org (for requestsdirected to the Police Department).
FOIA does not approve:
Sec. 1.2. Presumption. All records in the custody or possession of a public body are presumed to be open to inspection or 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.
We have already established that even home rule municipalities are prohibited from carving out their own exceptions to FOIA.
The last part of the email message — which says that electronic requests “shall only be accepted when submitted to…” is also an invented exception for reasons enumerated below in Problem 3.
Problem 3: City of DeKalb claims that it can dictate where and how a FOIA request is delivered; i.e., it must be delivered to a certain person, office, or email address. Here’s what FOIA actually says:
Requests for inspection or copies shall be made in writing and directed to the public body. Written requests may be submitted to a public body via personal delivery, mail, telefax, or other means available to the public body.
Once again, the city is attempting to create a restriction that FOIA does not have. Frieders knows this:
At present, the City has not designated a location at which FOIA requests will be received. In the case of an organization such as the City of Chicago, it would be inconceivable to contemplate each of the thousands of employees of the City potentially being recipients of FOIA requests. However, in the case of the City, from time to time FOIA requests are submitted to a myriad of the City’s hundreds of employees. This can cause confusion and delay in processing requests. Accordingly, the policy guide contemplates that electronic FOIAs would be submitted to email@example.com for general City FOIA requests, and firstname.lastname@example.org for FOIA requests directed to the Police Department. For FOIA requests submitted in person, they would be received in Room 219 of City Hall.
See that? Frieders is asking for sympathy. He isn’t claiming that FOIA authorizes a public body to reject a FOIA request when a citizen sends it to an un-designated person, because FOIA doesn’t authorize any such thing.
Meanwhile, the Act directs the public body to display prominently, in its administrative offices and on its website, the following:
A brief description of the methods whereby the public may request information and public records, a directory designating the Freedom of Information officer or officers, the address where requests for public records should be directed, and any fees allowable under Section 6 of this Act.
Notice the use of “may” and “should.” The only “shall” is the one directing the city’s prominent display of what the public “may” and “should” do. The city is trying to erect a barrier that does not exist in the law. A FOIA request delivered to any staff person, office, or email address under the city’s control must be accepted and delivered to the FOIA officer. Period.
Problem 4: The city “contemplates” introducing a fee structure allowed by FOIA, saying, “The City incurs a significant expense and utilizes significant staff resources in responding to FOIA requests on an annual basis.”
FOIA says this:
The General Assembly recognizes that this Act imposes fiscal obligations on public bodies to provide adequate staff and equipment to comply with its requirements. The General Assembly declares that providing records in compliance with the requirements of this Act is a primary duty of public bodies to the people of this State, and this Act should be construed to this end, fiscal obligations notwithstanding.
In calculating its actual cost for reproducing records or for the use of the equipment of the public body to reproduce records, a public body shall not include the costs of any search for and review of the records or other personnel costs associated with reproducing the records, except for [certain] commercial requests…
The city, then, is explicitly prohibited from trying to recoup the costs of staff time unless the FOIA request is a particular type of commercial request. Is staff time part of the “significant expense?” They should be made to show the expenses to make sure the city is not illegally trying to recoup for personnel costs.
So there you have it, fellow city watchers: a 2015 contender for the “most breathtaking disregard for open records laws” award.