Mayor Jerry Smith has promised us another City of DeKalb Committee of the Whole meeting for hashing out problems with the city’s new Freedom of Information Act policies and procedures that changed without notice in May. While we’re waiting for that opportunity, I’m going to highlight the issues via a partial transcript of Mac McIntyre’s public statement during the June 12 meeting that was dedicated to this topic, and stud it with my two cents here and there.
McIntyre: When I saw the blog post that the policy had changed, and you were no longer able to send a FOIA request to the FOIA officer — you had to fill out a form — a red flag went up right away, because the training that your staff, and your people go to, there’s an FAQ, a handbook put out by the Attorney General, that gives you guidelines for that. And it very clearly says that you can make a form for FOIA, but you cannot demand that people fill out a form. I was just at a meeting — or I should say Gracie, the one who does all the work in my company — was just at a meeting with municipal clerks across the state, and they talked about how they got FOIA requests on napkins, but it doesn’t matter, because if that FOIA request comes in on a napkin, they’ve got five days to respond. So I think it’s known across the state that it’s improper for people to be forced to fill out a form, to register, and everything…
Staff from the city manager’s office are now disputing that they ever told people they have to register at the website and use the online form to submit requests. However, in the blog post McIntyre referenced, I shared that I’d received independent reports in May that the FOIA officer, Aaron Stevens, phoned requesters to try to force them to use the website form instead of sending requests to the city via email as has been customary at least a dozen years and probably more. The reports are credible and I stand by them.
McIntyre: So I want to give an example, very briefly. The same time I filed a FOIA to find out about the contract on this, I also needed to file a FOIA to make sure impact fees were being used properly in Sycamore. Now, I’ve been involved in impact fee audits for many years, and it’s something that’s not easy to obtain. Same time. I go ahead — I want to be cooperative — so I use the form, fill out the FOIA form for the city of DeKalb. Automatically, because the state law says that you’ve got five days to respond, you can expect that you’re not going to get a return on your FOIA from the City of DeKalb for five days.
In the City of Sycamore, I filed a FOIA for an impact fee audit that’s very detailed. I wanted to know where the impact fees came from, which plot paid them, where the expenditures of the impact fees went, to make sure that there was a direct correlation between the two. In DeKalb, I get an automatic response saying, “We got your FOIA.” In Sycamore, the director calls me and says, “Tell me, are you wanting to know our actual fees, or what our fee structure is?” “I want to know the actual fees, the actual expenditures.” “No problem, just wanted to make sure.” An hour later, in Sycamore, my FOIA was fulfilled. To the detail.
This is consistent with my experience. DeKalb almost always takes the full five days, and the response is often incomplete or otherwise incorrect. I’ve had much better service from almost any other local public body you can name, and state agencies as well. (Recent example: I sent a FOIA request to IDOT a couple weeks ago, and they responded in a day.)
McIntyre: Five days later, I get a response. I’m mobile, and I’m on my iPhone, and I get a response that in DeKalb, my FOIA has been fulfilled. So I go to click the link, and there’s white-gold type on a white background. Can’t read it. But I scroll down. The link’s blue. I click the link. It says, “Click this to get your FOIA response.” I go, and it reloads the page. Something’s wrong. Oh, by the way, it took two minutes for that to load. Two minutes in Internet time is an eternity, just so you know. I clicked the link. It reloaded. No result. Clicked the link. It reloaded. So I used the form and filled it out, told Mr. Stevens that I can’t see it to read the instructions, but I saw the link and it just reloaded. His response was, “It works on my browser. If you have any further questions, contact the Illinois Attorney General.”
During the June 12 Committee of the Whole and one other meeting, Stevens claimed this was not in fact his response, but I have copies of the screenshots. Stevens wrote, “The records you requested are available on the FOIA Center. I was able to see both records you requested active on your account. If you have any further issues please contact me directly and I would be glad to assist you locate [sic] them. Any other matters regarding this FOIA request should be submitted to the Public Access Counselor at the address listed below.”
Mac’s problems had to do with accessing the records via his mobile device, not with locating the records, so Stevens’ offer to “assist you locate” is irrelevant. The level of denial of the technical issues with the website is stunning and spectacularly unhelpful.
McIntyre: Now, I have put over a thousand websites online, most of them here locally. I maintain about 300 websites. Daily, I keep statistics. I’m going to tell you, without looking, that if you deduct the staff from the City of DeKalb’s website, over 50% of your traffic is coming from cell phones. Of those cell phones, 80% are coming from iPhones. If it doesn’t work, if it keeps reloading, you’re not fulfilling the FOIA. I shouldn’t have to file a Request for Review with the Illinois Attorney General to get my FOIA request. I ask them, “Please send it to me via email. I’ll be fine.” Why would I do that? Well, because I won’t be a bandwidth hog, and have that two minutes of eternity where I’m using up bandwidth, because I’ve got a mobile connection, a slow connection, whatever that might be. An email is sent, and I can now review it offline. That’s efficient use. It cost less money doing that. And I get my FOIA fulfilled. Instead, I had to go back and forth and argue with someone who is convinced that, because it worked on his browser, if I had a problem I needed to contact the Attorney General. That’s rude. There’s no other word for that. That’s rude. It’s unprofessional. It’s a violation of the Illinois Freedom of Information Act.
While City of DeKalb is now again accepting FOIA requests via email (and napkin), Stevens still refuses to send responses via email. There are several problems with that refusal. I’m sure you must see the obvious customer service implications. Here’s one of the legal ones:
(5 ILCS 140/6) (from Ch. 116, par. 206)
Sec. 6. Authority to charge fees.
(a) When a person requests a copy of a record maintained in an electronic format, the public body shall furnish it in the electronic format specified by the requester, if feasible. If it is not feasible to furnish the public records in the specified electronic format, then the public body shall furnish it in the format in which it is maintained by the public body, or in paper format at the option of the requester.
Sending a PDF file of the response via email is entirely feasible. The city always creates a PDF of the response, because that’s what it uploads to the website; and taking two extra seconds to email a copy of the PDF to the requester shouldn’t be a problem, because the city routinely conducts all kinds of business using email every single day.
And as we have seen above, to “furnish” the response to the website does not necessarily “furnish” the response to the requester, and a failure to furnish constitutes a violation of FOIA.
McIntyre also talked about website costs and security issues. I’m going to stop writing now, but you can watch his complete appearance here, beginning about nine minutes into the recording of the meeting.