The Uni­ver­sity of Illi­nois Urbana-Champaign (UIUC) Freedom-of-Information-Act (FOIA) office has been in the news of late, the most recent part of UIUC to be scru­ti­nized in light of the Salaita “firing”/“non-hiring” deba­cle.¹  Specif­i­cally, Salaita’s lawyers have filed suit against the UIUC-FOIA office,² claim­ing that UIUC-FOIA failed to 1) even timely respond to much less sat­isfy a request for a whole raft of pub­lic doc­u­ments relat­ing to Salaita, and 2) also failed to timely respond to much less pro­vide a response to a sig­nif­i­cantly nar­rowed FOIA request for a more lim­ited set of these doc­u­ments.³

For its part, the UIUC-FOIA office has claimed that such a request would require a search of 8,000–10,000 doc­u­ments, and is there­fore “unduly bur­den­some,” a cat­e­gory of search which UIUC-FOIA is, under law, allowed to per se reject.

What’s inter­est­ing to me is how this bat­tle reca­pit­u­lates my own strug­gles to pry pub­lic infor­ma­tion out of the UIUC-FOIA office, which seems to feel it has as its duty the con­sis­tent and con­tin­ual obstruc­tion of pro­vid­ing pub­lic infor­ma­tion.  That is, it sees its duty as the con­sis­tent and con­tin­ual frus­tra­tion of the pur­pose for which it exists and receives a healthy dose of tax­payer money.

Since that sounds like rather a grandiose claim, let me fill in some of the details below.

 

1. FOIAs are up there in Illi­nois rights along with Apple Pie, Moth­er­hood and Deep Dish Pizza.

If you have any doubts about this, let me quickly put them to rest — Illi­nois FOIA rights aren’t just impor­tant,  they’re in fact enshrined in an act of Illi­nois law that puts them on the level of Apple pie, Moth­er­hood and Chicago pizza.  Thus 5 ILCS 140/1⁴ states, in part:

Pur­suant to the fun­da­men­tal phi­los­o­phy of the Amer­i­can con­sti­tu­tional form of gov­ern­ment, it is declared to be the pub­lic pol­icy of the State of Illi­nois that all per­sons are enti­tled to full and com­plete infor­ma­tion regard­ing the affairs of gov­ern­ment and the offi­cial acts and poli­cies of those who rep­re­sent them as pub­lic offi­cials and pub­lic employ­ees con­sis­tent with the terms of this Act. Such access is nec­es­sary to enable the peo­ple to ful­fill their duties of dis­cussing pub­lic issues fully and freely, mak­ing informed polit­i­cal judg­ments and mon­i­tor­ing gov­ern­ment to ensure that it is being con­ducted in the pub­lic interest.

The Gen­eral Assem­bly hereby declares that it is the pub­lic pol­icy of the State of Illi­nois that access by all per­sons to pub­lic records pro­motes the trans­parency and account­abil­ity of pub­lic bod­ies at all lev­els of gov­ern­ment. It is a fun­da­men­tal oblig­a­tion of gov­ern­ment to oper­ate openly and pro­vide pub­lic records as expe­di­ently and effi­ciently as pos­si­ble in com­pli­ance with this Act.

 

2. Even though access to FOIA infor­ma­tion in Illi­nois is sup­posed to be an inalien­able right, there’s been a gap between the­ory and prac­tice the size of the Grand Canyon.

Given the lan­guage of 5 ILCS you’d think that state agen­cies would take their FOIA duties as seri­ously as the fight against zebra mus­sels or the Asian carp.

Unfor­tu­nately, you’d be wrong.  Instead, vio­la­tions of the FOIA law have been so fla­grant that, for a roughly year-long period Illi­nois had in place an amend­ment to its FOIA law that required a pub­lic body to obtain pre-authorization from the Attor­ney General’s office for cer­tain kinds of FOIA exemp­tions that were oth­er­wise rou­tinely abused:

From Jan­u­ary 1, 2010 through August 26, 2011, when a pub­lic body intended to deny a FOIA request in whole or in part by assert­ing that the records were exempt from dis­clo­sure under sub­sec­tion 7(1)(c ) or 7(1)(f) of FOIA, the pub­lic body had to pro­vide writ­ten notice of the intent to deny to the Pub­lic Access Coun­selor. Sub­sec­tion 9.5(b) of FOIA, 5 ILCS 140/9.5(b), pro­vided for this process. We referred to this process as seek­ing pre-authorization from the Pub­lic Access Coun­selor to rely on one of these exemp­tions.⁵

Specif­i­cally, pubic agen­cies were in the habit of claim­ing infor­ma­tion was exempt from dis­clo­sure as “per­sonal infor­ma­tion con­tained within pub­lic records, the dis­clo­sure of which would con­sti­tute a clearly unwar­ranted inva­sion of per­sonal pri­vacy” (7c).⁶

Alternatively/additionally, pub­lic agen­cies found the 7f “pre­lim­i­nary drafts” exemp­tion⁷ equally use­ful for the pur­poses of keep­ing embar­rass­ing pub­lic infor­ma­tion from the eyes of the pub­lic.  After all, how hard is it to claim that the infor­ma­tion in an email is “pre­de­ci­sional” and there­fore exempt from dis­clo­sure under a pub­lic pol­icy which seeks to encour­age the free exchange of infor­ma­tion as part of the non-public decision-making process.⁸

To sum­ma­rize, whether by claim­ing “per­sonal infor­ma­tion” (7c exemp­tion) or a “pre­lim­i­nary draft” (7f exemp­tion), pub­lic agen­cies had become so good at bla­tant vio­la­tions of the Illi­nois FOIA law that even the Illi­nois leg­is­la­ture was moti­vated to sit up and take some action.  In this case mod­i­fi­ca­tion of the FOIA law to require pre-authorization for claims to 7c and 7f exemptions.

Alas, this step for­ward was all too soon rolled back­wards.  The spe­cific claim was that pre-authorization inter­fered with the more impor­tant busi­ness of appeal reviews con­ducted by the Attor­ney General’s office:

In the past two years, requests for infor­ma­tion were delayed expo­nen­tially as gov­ern­ments flooded Madigan’s office with these pre-authorization requests. Bauer [a spokes­woman for Illi­nois Attor­ney Gen­eral Lisa Madi­gan] said these types of requests from gov­ern­ment accounted for more half of the pub­lic access office’s work­load each year.⁹

Per­haps.  But of course it’s equally tempt­ing to think there was a strong desire on the part of gov­ern­ment to shift the bur­den of obtain­ing pub­lic infor­ma­tion back onto the backs of the pub­lic.  As I learned in law school, a lot of the biggest changes in law that have led to a more just sys­tem were based on evi­den­tiary changes, on who had the bur­den of proof.  If the pub­lic body has to obtain prior per­mis­sion to with­hold infor­ma­tion, it’s much harder for it to do so.

On the other hand, if with­hold­ing is auto­matic and it’s the pub­lic that has to pur­sue the infor­ma­tion … well, the out­come is pretty much what you’d expect.

 

3. The UIUC-FOIA office’s spe­cial place as a habit­ual vio­la­tor of Illi­nois FOIA law.

As I said above, you’d be for­given for think­ing that, since Illinois’s enshrined the avail­abil­ity of pub­lic infor­ma­tion via FOIA fil­ings up there with other rights of the utmost crit­i­cal­ity to its cit­i­zens, all Illi­nois agen­cies would be doing their utmost to ren­der unto the pub­lic that (infor­ma­tion) which is the prop­erty of the public.

But of course this think­ing of yours would be wrong, at least as far as UIUC-FOIA goes.  Thus in 2011 the Chicago Tri­bune ran this shocker of a quote about UIUC-FOIA’s respect for the FOIA law:

“The Uni­ver­sity of Illi­nois stead­fastly refuses to com­ply fully and com­pletely with (Free­dom of Infor­ma­tion Act) laws and to sup­ply the pub­lic with doc– uments it knows are pub­lic,” Ann Spillane, [Attor­ney Gen­eral] Madigan’s chief of staff, said last week. She said the U. of I. is among the agen­cies that “repeat­edly dis­obey the law.“¹⁰

Now you might think that UIUC-FOIA con­tin­ues to vio­late the FOIA law by inap­pro­pri­ately claim­ing exemp­tions for “per­sonal infor­ma­tion” (7c) or for mate­ri­als that con­sti­tute “pre­lim­i­nary drafts” (7f).  And of course you’d be right.

Specif­i­cally, although I haven’t sat down to review the rul­ings by the Pub­lic Access Counselor’s (PAC’s) office of the Illi­nois AG to see exactly how many of their deci­sions about UIUC-FOIA were on these top­ics, I’d guess the major­ity of the cases are on these two claims to FOIA-exempt mate­r­ial.¹¹

But appar­ently when you’re an office of UIUC you end up aim­ing higher than merely run-of-the-mill obfus­ca­tion.  Why not shoot higher?  Why not go beyond mere claims to 7c and 7f exemp­tion, and instead set up a sys­tem that allows absolutely no account­abil­ity for your actions … or inactions?

 

 4. How you’d think a FOIA sys­tem at a large pub­lic uni­ver­sity might be structured.

I real­ize I’ve never designed a sys­tem for respond­ing to FOIA requests — frankly, it’s not my bag, baby.  But it would seem to be a pretty straight­for­ward thing to do, espe­cially given the time and effort spent by Illi­nois to train FOIA offi­cers and offices on how to respond in a timely and legal man­ner.  Con­sider, for exam­ple, this 2011 press release from the Illi­nois AG’s office:¹²

“Sun­shine Week serves as a reminder of the impor­tance of the public’s right to know how their tax dol­lars are being spent,” said Attor­ney Gen­eral Madi­gan. “We have made impor­tant steps for­ward in ensur­ing more gov­ern­ment trans­parency by strength­en­ing the law. Thou­sands of gov­ern­ment offi­cials have been trained in their respon­si­bil­i­ties for pro­vid­ing pub­lic records and pro­vid­ing peo­ple with access to gov­ern­ment meet­ings. And in cases where the process does not work, the Pub­lic Access Counselor’s office is help­ing to pry open pub­lic records and meetings.”

In con­junc­tion with Sun­shine Week, Attor­ney Gen­eral Madi­gan released new guide­lines to help both the pub­lic and law enforce­ment agen­cies across the state to deter­mine when doc­u­ments should be made pub­lic. Madi­gan said ques­tions on how FOIA applies to law enforce­ment records were among the top con­cerns raised with the Pub­lic Access Counselor’s Office last year.

Given this amount of train­ing, how hard could the process be?  You have:

1. An address/email where you receive requests;
2. Peo­ple who make sure the tim­ing on responses is followed;
3. Someone(s) who deter­mines whether the request can be ini­tially processed in an auto­mated fash­ion — you know, given a request for emails, use the email search capa­bil­ity to con­duct a search on a key­word or keywords;
4. If the request can’t be ini­tially processed using an auto­mated (e.g., email search) sys­tem, deter­mine what stan­dard doc­u­ment repos­i­to­ries there and search those;
5. Once the auto­mated search or man­ual search (or com­bi­na­tion) is/are per­formed, review the col­lected doc­u­ments for infor­ma­tion exempted from dis­clo­sure under one or more sec­tions of the FOIA law;
6. Redact/withhold those exempted sections;
7. Sup­ply all the mate­ri­als col­lected, redacted or with­held as nec­es­sary; and,
8. Once you have this sys­tem work­ing, set it up as a writ­ten stan­dard oper­at­ing pro­ce­dure (SOP) so that no one can claim that you’re gam­ing the sys­tem by vary­ing how you respond to FOIAs as a func­tion of how much you want to reveal or withhold.

 

5. The­ory ver­sus Prac­tice (1) — Or, did you know that the UIUC-FOIA office is appar­ently unable to search the UIUC email system?

In my above back-of-the-envelope plan for a FOIA response sys­tem I said that auto­mated retrieval of poten­tially rel­e­vant doc­u­ments made sense as a first step to answer­ing queries.  So for exam­ple, assum­ing a large per­cent­age of queries are for emails, the FOIA sys­tem would be set up to search emails for key­words.  That couldn’t be hard, after all email sys­tems in at least rudi­men­tary form date back to 1962,¹³ and any/all mod­ern sys­tems have exten­sive search capabilities.

Or so you’d think.  But appar­ently this isn’t the case for UIUC, which, despite the fact that it’s inter­na­tion­ally known for its com­puter prowess, accord­ing to the UIUC-FOIA office has an email sys­tem that isn’t search­able.  Or at least isn’t search­able by mere mor­tals.  Con­sider what UIUC-FOIA told the Attor­ney General’s (AG’s) office in their Response to an appeal I’d made to the AG’s office about a UIUC non-responsive FOIA:

The Uni­ver­sity has approx­i­mately 100,000 stu­dents and employ­ees across its cam­puses.  The University’s infor­ma­tion tech­nol­ogy depart­ments are not able to a run query across all email accounts for a key­word or the name of a per­son with­out unduly dis­rupt­ing oper­a­tions.  For the UIUC cam­pus alone, the search itself would take a week to run and it would take 18–24 months to cre­ate a report.  This is the rea­son we asked Dr. Schein­man to nar­row his request to doc­u­ments from a spec­i­fied, lim­ited num­ber of indi­vid­u­als or offices.¹⁴

Also con­sider this excerpt from a response of UIUC-FOIA to a FOIA request made by the UIUC stu­dent news­pa­per, the Daily Illini:¹⁵

Your request for doc­u­ments and infor­ma­tion listed in the sec­ond point of your email is con­sid­ered unduly bur­den­some to the Uni­ver­sity, inas­much as the request would unduly bur­den the pub­lic body by requir­ing a search of thou­sands of email accounts, includ­ing the accounts of stu­dents, at the Urbana cam­pus alone. Cre­at­ing a report to search these accounts for key­words would take 18–24 months. The search itself would take over a week to run. The col­lec­tion, review, and pro­cess­ing of these records would take a sub­stan­tial amount of time as well. Given the short time­frame pro­vided by FOIA and the lim­ited staff avail­able to per­form such col­lec­tion, review and pro­cess­ing, com­pli­ance with your request would unduly bur­den the Uni­ver­sity and its operations.

 

6. The­ory ver­sus Prac­tice (2) — Well, maybe UIUC-FOIA actu­ally can search at least parts of the UIUC email sys­tem … but, if so, they won’t tell you how much search­ing voodoo they can do, much less how much voodoo they actu­ally do do.

Now, a close read­ing of UIUC-FOIAs ver­biage might make you think that, although UIUC-FOIA can’t search the whole email sys­tem, they actu­ally can search parts of it, and that they’re more than will­ing to do so as long as you work with them to “refine” your search.

Yes indeedy, you might think that.  And maybe you’d be right — but if that’s the case, don’t expect to find out if it’s true from UIUC-FOIA.

I can prove that state­ment, by the way — thus I repro­duce below an email I got from UIUC-FOIA after I’d got­ten so angry at their behav­ior that I wrote to find out if they could search any­thing at all, or if they were just throw­ing requests over the prover­bial fence and let­ting peo­ple self-report the results:

 Dear Dr. Scheinman:

I write to respond to five of your six­teen Free­dom of Infor­ma­tion requests dated and received in my office on June 4, 2014, in which you requested:

“11. Please inform me whether there was any attempt made by UI FOIA or legal to con­firm the state­ment by Mr. Durack regard­ing the absence of any emails on his UI account that refer to me. [14–406]

12. Please inform me whether any inde­pen­dent searches of the UI email sys­tem were per­formed; if not, please inform me why this was not done. [14–407]

13. Please inform me whether it is your usual prac­tice to have peo­ple iden­ti­fied as pos­si­bly hav­ing pro­duc­tive doc­u­ments *self-report* the pres­ence or absence of those doc­u­ments. [14–408]

14. UI FOIA has pre­vi­ously stated that it had no stan­dard search pro­ce­dure for respond­ing to FOIA requests. Please inform me whether you have any capac­ity to search the UI email sys­tem, and if so, the exact details of what you are able to search. [14–409]

15. Please inform me why you lim­ited the request of Mr. Durack to that sin­gle email account, and why you did not ask him to pro­duce all cor­re­spon­dence relat­ing to me that he made dur­ing uni­ver­sity busi­ness.” [14–410]

These requests are denied as they are not in proper form. Sec­tion 3(a) of FOIA pro­vides, “Each pub­lic body shall make avail­able to any per­son for inspec­tion or copy­ing all pub­lic records, except as oth­er­wise pro­vided in Sec­tion 7 of this Act.” (5 ILCS 140/3(a)). (Empha­sis added). The Act fur­ther pro­vides that it is “not intended to cre­ate an oblig­a­tion on the part of any pub­lic body to main­tain or pre­pare any pub­lic record which was not main­tained or pre­pared by such pub­lic body at the time when this Act becomes effec­tive, except as oth­er­wise required by applic­a­ble local, State or fed­eral law.” (5 ILCS 140/1). (Empha­sis added).

Your FOIA requests are not seek­ing a pub­lic doc­u­ment; instead, you are ask­ing the Uni­ver­sity to pro­vide a detailed expla­na­tion. In Kenyon v. Gar­rels, the 4th Dis­trict Illi­nois Appel­late Court found that “requests for infor­ma­tion that did not iden­tify the doc­u­ments to be pro­duced or made avail­able was not in proper form.” 184 Ill. App. 3d 28, 33 (Ill. App. Ct. 4th Dist. 1989). The court went on to say, FOIA “does not com­pel the agency to pro­vide answers to ques­tions posed by the inquirer.” Kenyon, 540 N.E.2d at 13 (cit­ing Krohn v. Depart­ment of Jus­tice (D.C. Cir. 1980), 628 F.2d 195).¹⁶

So there you go.  UIUC-FOIA is very happy to admit that they can’t search the entire email sys­tem (not that I asked them to search the entire sys­tem); but they also won’t tell any­one what they can search, or how they search, because to do so would be answer­ing an improp­erly phrased FOIA request.

 

7. An exe­ge­sis of UIUC-FOIA’s exquis­itely detailed SOP for respond­ing to FOIAs — ha ha ha.

One of my father’s reg­u­lar admo­ni­tions to me was “Ille­git­imi non car­borun­dum,”  Eric Partridge’s invented latin phrase for  “Don’t let the bas­tards grind you down.“¹⁷  In the pur­suit of my father’s mem­ory I there­fore engaged in what, in the bright glow of day­light, can only be said to have been an act of true masochism on my part.  That is, I sent the fol­low­ing FOIA request to UIUC-FOIA:¹⁸

20140507_1. Please pro­vide me with an answer to the fol­low­ing ques­tion: does the UI have *any* stan­dard pro­ce­dures, whether writ­ten or oral, that it fol­lows in respond­ing to FOIAs?

20140507_2.  I repeat #1 and ask that, if the answer is yes, that I be pro­vided with either copies of all such doc­u­ments or ref­er­ence to a site or sites where I may obtain these documents.

PLEASE NOTE THAT I AM FILING THE ABOVE TO AS *SEPARATE* FOIAS, IN ORDER THAT UIUC-FOIA/LEGAL BE PRECLUDED FROM BUNDLING THE TWO *SEPARATE* REQUESTS TOGETHER IN ORDER TO DENY BOTH.

I UNDERSTAND THAT MULTIPLE SEPARATE FOIA REQUESTS WILL ULTIMATELY TRIGGER A RESETTING OF THE “MULTIPLE-FILER” CLOCK.  I ACCEPT THIS DESIGNATION WITH PLEASURE AND WITH PRIDE, SINCE IT APPEARS THE ONLY WAY TO GET ANSWERS TO MY FOIA REQUESTS.

Thank you for your atten­tion to these two sep­a­rate FOIAs.

Slightly over a month later, I got an email from UIUC-FOIA with a sin­gle page attach­ment that, they said, con­sti­tuted their stan­dard pro­ce­dure for respond­ing to FOIA fil­ings.  What fol­lows is this stan­dard pro­ce­dure in its glo­ri­ous entirety:

FOIA pro­cess­ing at the Uni­ver­sity of Illi­nois:¹⁹

1. FOIA request for pub­lic records is received in Uni­ver­sity Relations
2. FOIA request logged and assigned to coor­di­na­tor for processing
3. Coor­di­na­tor under­takes col­lec­tion process
4. Coor­di­na­tor receives records, com­pil­ing into man­age­able files/PDFs for review
5. Coor­di­na­tor reviews records and marks exempt and non-responsive materials
6. Request and reviewed records sub­mit­ted for review to Assis­tant Direc­tor for FOIA Administration
7. Assis­tant Direc­tor con­ducts review, con­sult­ing with other Uni­ver­sity staff as necessary
8. Cor­re­spon­dence Guide­lines
   a. Day 5: Issue response or exten­sion let­ter
   b. Day 10: Issue response
   c. Day 21: For com­mer­cial or recur­rent requesters, issue response or notice let­ter of esti­mated date for pro­duc­tion of records²⁰

 

7. Yes, Vir­ginia, UIUC-FOIA one-ups the NSA in forthcomingness.

So there you have it folks, a thor­oughly expli­cated pro­ce­dure, one that reminds me of that great car­toon of the physicst’s black­board proof that cov­ers the board with equa­tions and, in the mid­dle, has an arrow with the phrase above it “then a mir­a­cle occurs.“²¹

In this case the mir­a­cle is what’s packed into #3 of UIUC-FOIAs incred­i­bly pre­cise descrip­tion — “Coor­di­na­tor under­takes col­lec­tion process.”  And what an under­taker that coor­di­na­tor is … buried in those four words is all that search­ing and con­tact­ing and gath­er­ing that UIUC-FOIA appar­ently thinks doesn’t deserve to be writ­ten down as a stan­dard pro­ce­dure, much less con­veyed to the world out­side their doors.

If you detect a hint of sar­casm, please under­stand some­thing — all of this would be funny, were it not for the fact that the out­come is the sys­tem­atic sup­pres­sion of pub­lic infor­ma­tion by a uni­ver­sity that, last time I checked, was still a pub­lic entity.

But that’s enough on this for now.  Trust me, though, I have a lot more to say on the subject.