Who's Who Under FOIA

Public Access Counselor 

The Public Access Counselor (PAC) is an attorney in the Attorney General’s Office whose responsibility is to ensure compliance with FOIA. The PAC is part of the Public Access Bureau in the Attorney General’s Office, which includes several assistant attorney generals and professional support staff members working to respond to FOIA and Open Meetings Act issues raised by the public and government officials. Working under the direction and supervision of the Attorney General, the PAC has the authority to review requests for documents under FOIA and determine whether those documents should have been produced under FOIA. The PAC also has the authority to determine whether a public body has violated the Open Meetings Act. As part of this Public Access work, the Attorney General has subpoena power, may issue advisory opinions to guide public bodies, may issue binding opinions in FOIA disputes and may sue to enforce binding opinions.

Public Body

Public Body is defined in FOIA as “all legislative, executive, administrative, or advisory bodies of the state, state universities and colleges, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees, or commissions of this state, any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees thereof and a School Finance Authority created under Article 1E of the School Code.” FOIA provides that a “‘public body’ does not include a child death review team or the Illinois Child Death Review Teams Executive Council established under the Child Death Review Team Act.”

FOIA Officer

The FOIA Officer is a person appointed by the “public body.” The FOIA officer’s responsibility is to receive FOIA requests from the public and to send responses in compliance with FOIA. FOIA requires that each public body appoint one or more FOIA officers who must complete an electronic training developed by the Attorney General’s PAC. The Attorney General’s office will make the electronic training available to all FOIA officers.

What Does the PAC Do with My Request for Review?

The PAC will review your request and will do one of three things: 

• Decide that no further action is necessary. If the PAC decides that the alleged violation is unfounded and no further action is necessary, the PAC will inform you and the public body of that decision.
•  Request more information from the public body. If more information is needed to review the issue, the PAC may, within seven working days after receiving the Request for Review, send a copy of the request to the public body and ask for any records the PAC needs to complete the review. The public body has seven working days to provide the requested information. The Attorney General, through the PAC, has the authority to issue a subpoena if the public body fails to fully respond.
•  The PAC may also try to resolve your FOIA dispute with the public body through mediation or other informal efforts.

When Will the PAC Issue a Final Decision?

If the PAC decides to issue a binding opinion, the PAC will issue that opinion within 60 calendar days after receiving all the information needed to decide the matter. The PAC may extend the 60-day time period by 21 working days by sending a written notice to the requester and the public body. This written notice must include the reasons for the extension.

What are the Different Possible Outcomes of a Request for Review by the PAC?

There are multiple ways the PAC may respond to a Request for Review: 

• Work to resolve your FOIA dispute with the public body. (5 ILCS 140/9.5(f)) The PAC may choose to mediate the dispute or resolve the matter by means other than the issuance of a binding opinion. The PAC’s decision to decline to issue a binding opinion is not reviewable. 
• Review the issues in your FOIA dispute and determine that no further action is necessary. (5 ILCS 140/9.5(c)) If the PAC decides that the alleged violations of FOIA are unfounded, the PAC will advise the requester and the public body of that decision. The PAC will not conduct any further review.
• Issue a binding opinion to resolve the FOIA dispute. (5 ILCS 140/9.5(f)) After obtaining and reviewing any information needed to analyze the FOIA dispute that you have with the public body and any additional information that you or the public body chose to provide, the PAC may issue a binding opinion. If the opinion orders the public body to produce records, the public body may appeal the opinion to the circuit court. If the public body does not appeal the opinion and fails to disclose the records as ordered by the opinion, the Attorney General’s office may sue the public body to enforce the opinion. If the opinion concludes that the records fall within a FOIA exemption and need not be disclosed, you may appeal the opinion to the circuit court.

Can the PAC Issue Advisory Opinions to Public Bodies?

Yes. The PAC may assist any public body by issuing an advisory opinion to provide guidance on how to comply with FOIA. (5 ILCS 140/9.5(h)) The public body may request an advisory opinion to obtain guidance on FOIA compliance. The request must contain sufficient accurate facts from which a determination can be made. The PAC may request additional information from the public body to facilitate the review. A public body that relies in good faith on an advisory opinion of the PAC is not liable for penalties in a subsequent lawsuit, so long as the facts upon which the opinion is based have been fully disclosed to the PAC.

What’s the Difference Between Filing a Request for Review with the PAC or Filing a Suit in Court?

If the PAC issues a binding opinion deciding your case, then that opinion carries significant weight. If the losing party decides to appeal it to court, the court must give deference to the PAC’s opinion and can only overturn it if it is clearly erroneous. If you decide not to seek assistance from the PAC and instead go straight to court, the public body has the burden to show that its denial was correct through clear and convincing evidence.