Rauner fights FOIA ruling as bad public policy

Suit charges that public access counselor overstepped authority

Gov. Rauner believes that even being required to release 1,783 emails would “substantially hinder the operations of government.” (One Illinois/Ted Cox)

By Ted Cox

Gov. Rauner is fighting a decision that he has to release 1,783 emails to the public by insisting it would be “contrary to sound public policy.”

The governor also charged that the state’s public access counselor “exceeded its statutory authority” in a suit filed Nov. 13 against Attorney General Lisa Madigan and One Illinois.

The suit stems from a binding opinion issued in October by the public access counselor that Rauner must release 1,783 emails on his appointments to state boards, councils, and commissions in a Freedom of Information Act case.

In an ensuing complaint filed in Sangamon County Circuit Court in Springfield, Rauner’s suit called the binding opinion “erroneous” in that it “ignored well-established case law and misapplied the law to the facts.” The suit repeated the Rauner administration’s original position in the FOIA case that it was “unduly burdensome” to expect the Governor’s Office to process what could be thousands of emails on government appointments.

The administration argued during the FOIA process that it could not determine adequate search terms to narrow the emails involving the governor, his wife, Diana Rauner, and various staffers. When the attorney general’s public access counselor suggested that the term “appoint” be used to narrow the search, that produced the 1,783 emails found to be applicable to the FOIA request.

Yet in that, his suit claimed, the public access counselor “exceeded its statutory authority.”

Finally, in a third and final count, the governor charged that even releasing those 1,783 emails to the public would be “contrary to sound public policy,” in that it would establish a precedent “that will substantially hinder the operations of government bodies in the state of Illinois.”

The attorney general and One Illinois beg to differ.

Madigan’s office will handle the case, but the legal issues seem clear. An initial email search found 44,536 “potentially responsive emails,” which indeed would be unduly burdensome for the government to handle. But simply by adding the search term “appoint” — a step the administration could and should have taken itself, without being prompted — that narrowed it to 1,783 emails, which is what the public access counselor said should be released in the binding opinion.

If any court were to rule that redacting fewer than 2,000 emails proved “unduly burdensome” to the government and would “hinder the operations of government bodies,” that would largely render FOIA meaningless as a tool for the public to reveal the inner workings of government.

A previous One Illinois FOIA case found that the governor’s staffers worked to defeat a bill in the General Assembly expanding public funding for abortion that Rauner backed as a candidate (and eventually signed) in an unsuccessful attempt to keep it off his desk.

Rauner filed the suit as governor a week after he lost his re-election battle to Gov.-elect J.B. Pritzker. According to legal experts, if the suit is not decided by Pritzker’s inauguration, Jan. 14 — which would seem unlikely — control of the suit and the emails would revert to Pritzker. Rauner also continued to fight a suit with the American Federation of State, County and Municipal Employees Council 31 on whether he illegally declared an impasse in contract negotiations, as he recently requested a 60-day extension that would go beyond his term in office.

The original complaint was mailed to Madigan and One Illinois last week and received on Saturday.