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Column Wed Aug 12 2009

FOIA, TIFs, and Disarmament by Transparency

Government transparency: realm of nerds? Or power politics?

America's post-war political tradition has been one of transactional politics. People measure their government less on ideology and more on "results", typically meaning, "what they provide". One of the side effects of this is that advocates for government transparency--who come from all points on the ideological spectrum, in equal degrees of vociferousness--are seen as process-oriented and, well, nerds. Transparency in government, however, isn't just something for good government hobbyists or hard-bitten cynical journalists. "Realists" on transparency argue that the desire to know everything the government does ignores the reality that in order to get things done, Serious People need to negotiate behind closed doors (Cf., privatizing parking meters; Chicago's stimulus list). Transparency--the state erring on the side of openness and making all of its institutional processes immediately available for public inspection--doesn't necessarily need to make government operations impossible. Quite the contrary, actually; foreknowledge of public scrutiny could act as a form of disarmament. Over time, the presumption of openness could disarm cynics and foster a mode of interaction between the state and private actors that eliminates the competitive pressure to hide things from the public.

Or, instead of using ridiculous jargon like I did in that last sentence, I can use a series of cliches; if Information is Power, then true and full transparency is an immediate way to give Power to the People.

Recently, two major government transparency issues have come (close to) the public eye: an amendment to the state Freedom of Information Act (FOIA) and the City of Chicago's new TIF transparency website. A look at these two issues below.

FOIA: Give the People What They Want.

Governor Quinn received from the Senate a bill amending the Open Meetings Act and the Freedom of Information Act. As the bill came closer to becoming a law, lobbying from the association of State's Attorneys and the Illinois Municipal League grew more intense against the bill. A compromise bill emerged. They argued that it would create a bureaucratic mess and become overly onerous on local governments, which often have little capacity to handle FOIA requests.

The bill, SB0189, would do a number of things to increase public access to government records: it would reduce the time period given to governments to delay response or compliance with a request; provide for civil penalties and lawyers' fees for failed compliance (meaning, in cases where the government failed to release information that had no compelling reason to be shielded); training for FOIA compliance officers would be handled through the Attorney General's office instead of by municipalities; and an office would be created within the Attorney General's office that would mediate FOIA disputes (and enforce compliance). This is important because nowadays, if a government denies you information you requested and you want to appeal it, you will end up in a county courtroom at $200 an hour for a lawyer.

In order to avoid civil penalties and eventually being compelled to release everything by the state, local governments will err on the side of just releasing everything people ask for. Anybody who has requested information from a government in states other than Illinois, as I have, can tell you that this is a presumption that is completely absent here.

Here's a shocking fact for you: if you walk into a medium-sized city in, say, Michigan, and ask them for all documents relating to a public works project and real estate development, they may ask you to fill out a form; possibly ask for an ID; and then they will hand everything over to you.

If you've ever tried to get information from a local government in Illinois particularly about a public works program or private development, you know that the presumption is to not give you anything. Governments have an extremely broad discretion to call things "proprietary" and thus not release them because it would harm some private entity; or to label pretty much anything that hasn't been cited publicly by the head of that agency (or government) as being in "draft", shielding it from public consumption. It is extremely difficult to get meaningful information from even small bedroom community governments.

The problem is particularly bad at the local level, where city/village and county governments are doing an extraordinary amount of business with private entities and are used to very little scrutiny either from the public at large or from the media. Small local papers lack the will or resources to be confrontational with their governments, and even the most engaged of voters spend little time focused on contracting or municipal planning decisions made by their town officials or county commissioners.

Eventually, you'll have to sue them to release the information. And of the tiny fraction of people who will even bother to fill out a FOIA request, only a small fraction have the expertise to fill it out properly; and of that tiny fraction, an even smaller fraction will have the gumption or resources to pursue the matter in court. Not to mention given the time sensitive nature of most of these situations--say, wanting to get full details of a proposed project before the county or village votes on it--by then the point is moot.

Local governments are concerned that the cost of compliance will be onerous. The story goes that every town has some yahoo who will go in and request sensitive information constantly, and local clerks will be in the position of having to release materials that they likely shouldn't, or putting the local government at risk of civil penalties. Not to mention that in smaller communities, where a bare bones staff has to keep up with massive bureaucratic requirements as it is, constant FOIA requests will force them to hire more and more staff at taxpayer expense.

The Illinois Municipal League has provided a useful rundown of their argument, posting the bill as a pdf with their comments to the offensive portions. Read it here. Their arguments have been taken down all over the place: by Chicago Justice Project, by Progress Illinois, by the Rockford Register-Star, by the Illinois Press Association, among others.

Phil Kadner, columnist for the Southtown, summed the big picture up to me this way:

[T]he people now objecting to the FOI rewrite have never actively campaigned for or [been] involved in the effort to improve one of the worst FOI acts in the country. Now, they are objecting to the improvements that have been made. That should tell you where they are coming from.

The Chicago Justice Project offers this general summary of the IML's objections:

On July 9th the IML authored a letter to Governor Quinn stating the following arguments with my responses included.


"The primary reason that this system will probably fail is that it was seemingly drafted without a basic understanding of how local governments operate. It is our understanding that the principle drafters of this legislation, in conjunction with the Attorney General's Office, were the Illinois Press Association and other special interest groups. While they may be knowledgeable in their chosen fields, they are less than experts on municipal administration and the systems and methods of maintaining municipal records systems," (pg. 2)

CJP Response:

To follow this thread of logic, the laws that govern the availability of government records must bend to the record keeping practices of the local municipalities. Open record laws cannot be reliant on the record keeping practices of those who stand to feel the repercussions of the records being released. This logic would stop the farmer from upgrading the lock on the hen house because the fox lacks the ability to bypass the new lock. Municipalities must be motivated to reform the way they operate and store information. Innovation of our government systems will be driven by responsiveness to fresh and progressive open records laws not through rewarding municipalities for maintaining antiquated systems that allow them to foil public inspection of their operations.

The CJP's analysis is highly cogent if hotly worded. Governments are institutions owned by the people, and their operations in a very real way belong to us. If a more open FOIA would make current government operations tricky, then governments need to change how they operate. If private entities will be shy about doing business with governments because of the public scrutiny, they need to think twice about how they're treating their government contracts as a profit source. The CJP's unstated underlying assumption here is that local governments have an oppositional relationship with the public at large when it comes to access to government processes. For the IML argument to hold, they need to refute this assumption, and they don't do so. It stands to reason, particularly when we think about the City of Chicago, the largest and most important local government in the state. We need to go no further than the parking meter fiasco to illustrate this point, but I'm sure any number of journalists or activists could testify as to the difficulty in extracting basic information from the city, particularly on development matters.

When the parking meter issue blew up, the city's former CFO, Paul Volpe, argued that the meters had been properly valued at sale. But the claim that there was some actual, specific quantitative value to the city's parking meters is nonsensical. The value is whatever could be gotten for them. Going into the negotiations, which were to take place behind closed doors between high-level city officials under the direction of the Mayor, the purchasers knew there would be little to no public input or scrutiny of the deal. That foreknowledge surely had an unquantifiable effect on the negotiations.

Ideally, the process of entering into a major public-private partnership has multiple regulatory steps, cooling off periods, and public input periods that allow for competitive bids and public comment and testimony on the proposal before independent review bodies. These are all issues of transparency that likely had a direct impact not only on the character of the privatization but the value of the sale (or "lease") as well. While the process may have taken longer and been rockier, the outcome would have not only likely have been more beneficial for the taxpayer, but also would have shielded the administration from popular outrage.

I don't know if the current FOIA reform act sitting on the Governor's desk is perfect. Nor can I say with any certainty that the IML doesn't have some solid points in their critiques of the bill's occasional vagueness (or, if some glibness is okay, opacity), and maybe their fear of a chaotic and tempestuous free-for-all of extreme requests is justified. But Kadner's point is not merely rhetorical. The IML has shown little desire to fix what is commonly recognized as a weak FOIA that puts Illinois near the rear when it comes to freedom of information. Had they ever shown a willingness to subject our state's governments (and we have a lot of governments) to more scrutiny, their attempts to squash this bill would be better taken. But even if this bill would create some trouble for local governments and put enormous pressure on the AG's office, beginning erring on the side of more access would make subsequent reforms to aid local government easier to swallow.

TIF Transparency Critics: New Website Is a C-

Daniel X. O'Neill and Max Brooks have done yeoman's work in reviewing the legally mandated TIF transparency website launched by the city at the end of July. They give it a C-, a grade that suggests both bare adequacy and a lack of seriousness.

O'Neill and Brooks' conclusion:

Aside from our grading system, there is another, more objective way to judge the site: Does it fulfill the requirements of the TIF sunshine ordinance?

Using this criteria, the site fails. The requirements of the ordinance are clear: It mandates that all annual reports for TIFs designated after July 30, 2004, be published. Yet on the current site, only the most recent reports are published. Meanwhile, many of the links to these TIF districts' designating ordinances -- also required by the ordinance -- are broken. And the five TIFs passed in 2009 are AWOL.

Tax Increment Finance districts freeze the revenue going to taxing bodies at a certain assessment (the assessment at the time of the TIF's creation) and re-route it to a TIF fund that can only be spent inside the TIF district (or in adjacent districts). Developers love TIFs because they create a government secured fund against which they can sell bonds to banks to raise the capital to get a project done. The money in the TIF funds often go to service the bond issues. Often the TIF money goes to subsidize improvements to a development and can be spent on other local pet projects with little oversight.

In Chicago in particular, the TIF funds are often controlled or influenced by the Mayor's office through executive-level departments. As a result, we have tax dollars being spent outside of a true appropriations process. As I've discussed before, the spending of money has to go through an appropriation in the legislature for a very good reason. Thus why the "power of the purse" is in the lower house of Congress. By locating state spending in the executive branch, public input into government priorities is not only limited, but the legislature becomes dependent on the executive to meet the expectations and needs of their constituents. Is this beginning to sound familiar? Do I need to write another expository sentence that ends with "rubber stamp"?

TIFs may be good development tools--the "only game in town" as Mayor Daley once called them--but without transparency and thereby control of how the money in these funds is being spent, we are taking an essential--in fact, the essential--power out of the hands of the legislature, the group most locally accountable to residents.

Yes, the thought of our current crop of Alderman quibbling over appropriations and spending every year is a little scary. But sometimes democracy is scary. Jefferson knew that:

Timid men prefer the calm of despotism to the tempestuous sea of liberty.

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