The Public Access Counselor

Under FOIA, if your request is denied, you have the right to seek review by the Attorney General’s Public Access Counselor or to file a lawsuit to enforce your rights. While the PAC can be a useful way to get your records, there are a few issues to keep in mind.

First, there is a growing trend in this state for public bodies to ignore PAC opinions. This Daily Herald op-ed outlines the problem. Many people do not realize that only PAC “binding opinions” will be enforced in court by the Attorney General, and the PAC typically issues less than 20 binding opinions a year in FOIA and Open Meetings Act reviews. The other thousands of times, the PAC issues a “determination letter,” and if the public body does not comply, you are left on your own.

Second, the PAC has not always reached the correct decision. In Fagel v. IDOT, the PAC agreed with IDOT that it could lock an electronic spreadsheet due to a “fear of manipulation.” The courts disagreed.

Finally, the FOIA statute requires the government to pay attorney fees to the requester’s attorney if the requester prevails in court, but not in a proceeding before the PAC. We are generally able to represent FOIA requesters in litigation at no cost to the requester, win or lose, due to the statutory attorney fee provision, but that option is not available in a PAC review. This leaves the requester to proceed alone against a government body that often has an attorney unless the requester can afford to hire an attorney or an attorney is willing to handle the PAC review for free.

If your request has been denied, you should think carefully about which route you chose. If you already have a pending PAC review, you can still proceed with litigation and withdraw your PAC review.

For more information on FOIA, click here to view our FOIA Guide.

If you would like to speak to a FOIA attorney, click here to request a free consultation today.


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