HB 2717 would require that any public body with an annual budget of at least $1 million must maintain a website and include specific information on that website. Public bodies, represented by organizations like the Illinois Municipal League (my employer), contend that the bill represents another unfunded mandate imposed by the state onto local governments. Advocates of "open government" counter that the bill provides for much-needed transparency to insure that the public has essential information about their local governments.
Most would agree that reducing unfunded mandates, or at least requiring the state to fund them, is good public policy. Most would probably also agree that transparency is a good thing. Reducing unfunded mandates and fostering transparency need not be mutually exclusive. The critical question for policymakers is how to best balance the public's "right to know" with the need to shield local governments from the annual accrual of one unfunded mandate after another.
The solution is to develop a singular and seamless mechanism for providing information. Transparency has become politically popular and legislators are looking to jump on board with transparency legislation of their own. Some of these bills have already become law. What we end up with is a mishmash of posting and reporting requirements. Local governments must abide by the posting requirements within the Open Meetings Act and are also subject to the Freedom of Information Act. Information also has to be printed in newspapers, provided to the State Comptroller, and forwarded to the Department of Central Management Services (CMS) for inclusion on the Illinois Transparency and Accountability Portal (ITAP). And now HB 2717 is proposing that information be included and updated on the website of the public body. The bill does allow for some of the ITAP postings to satisfy the requirements within the bill, but that still doesn't fully address the multiple existing reporting requirements. In fact, the bill specifically says that the posting requirements in the legislation are in addition to any other posting requirements established by law or ordinance.
Somebody has to do all of this work, and some of it is unnecessarily duplicative. And somebody has to pay for it. This would be Illinois taxpayers. So the real public policy question shouldn't be "how can we make more information available to the public?" The better question is "how we can provide the information most efficiently and inexpensively?"
The primary advocate for HB 2717 is the Illinois Policy Institute (IPI). And the IPI appears to agree that reducing local government costs should be an objective of good transparency law. In fact, here's what the IPI offers as an argument for the passage of HB 2717:
This bill is also a big cost-saver for cash-strapped local governments, as it will save countless hours of paid staff time fulfilling Freedom of Information Act, or FOIA, requests. If this bill becomes law, an agency would be able to legally deny all FOIA requests asking for information already posted on the agency’s website.
In addition to saving time, it would also limit costly lawsuits – paid for by taxpayers – arising from mishandled FOIA requests.
The IPI says that HB 2717 is terrific because it will ease the burden and expense of complying with FOIA requests since, under the bill, the information required to be posted on the internet will be exempt from FOIA.
But this is a deeply flawed argument for advancing the bill. FOIA exemptions for information posted on local government websites is already the law in Illinois. Here's the relevant language from Public Act 98-1129, which became law in December of 2014:
Since website posting already exempts the information from FOIA unless a taxpayer can make the case that they don't have a way to access the information on the website (a rare occurrence in an era of computers and smartphones), the argument that HB 2717 would reduce taxpayer costs rings hollow. In the end, the bill only adds to the multifarious and inefficient web (pun intended) of reporting requirements on local governments. This costs taxpayers more.
Rather than layer additional reporting requirements on local governments, transparency advocates should focus their efforts on the lack of transparency in the state legislative process. For example, local governments cannot take action on an item unless it was posted for a continuous 48 hour period. The General Assembly can vote on legislation after it has been posted for an hour.
