The Q&A law | Private Affairs Can Sometimes Be An Open Book Columns

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If I am a company that does business with the state or any local state government, are my business records subject to disclosure under the Illinois Freedom of Information Act (FOIA) ?

Ouch, they could be.

FOIA law categorically states that it is state policy that all people have the right to full and complete information about government affairs. Government records should be consulted by its citizens so that they can better monitor the government and make more informed political judgments about it.

Thus, FOIA is set up so that all government documents are available to people requesting certain documents, unless those requested documents are specifically excluded by law.

The presumption is therefore openness, and the government entity has a heavy burden of proving that a requested document is excluded from disclosure under the law.

The question becomes really confusing when a private company contracts with the government to provide services.

Are the records of that company then submitted to FOIA?

The law specifically says that documents in the possession of a party who contracts with a public body to exercise a government function on behalf of the public body directly related to the government function must be public documents (therefore subject to the FOIA).

This legislation is designed to combat governments that could avoid FOIA by privatizing government functions by contractually delegating to a private company.

A possible example could be a municipality contracting with a private utility company. The business records of that utility provider could then be a public record under FOIA. This is true even though the company records have never been handed over to the municipality.

Only documents which relate directly to the exercise of this governmental function (providing the public service to the residents of the municipality) are likely to be disclosed. However, in practice, this could represent an important part of this company’s records if providing a public service to the city is its main activity.

Courts have ruled that private entities that become too comfortable with a government entity can also be declared to be performing government functions from that government entity for FOIA purposes. Like private non-profit foundations that raise money for public universities but do so in a way that suggests that the foundation is in fact a branch of that public university.

Even when submitted to FOIA, the law provides that certain information may be exempted or censored if there is a federal or state law or regulation implemented by federal or state authorities specifically preventing disclosure. Examples are criminal investigations, mental health records or state-owned trade secrets.

Another large area of ​​FOIA disclosure exclusion available to private companies is trade secrets and company business or financial information.

The criteria for protecting such sensitive information is that it was obtained from someone when such information is provided under the pretext that it is proprietary or privileged, and disclosure would cause competitive prejudice to the owner of that information.

Thus, private companies should exercise caution when contracting with government entities to avoid the minefield of FOIA disclosure.

It is the ultimate conflict between the openness needed for democratic government and the secrecy needed to make money.

This is the American experience.

Brett Kepley is a lawyer with Land of Lincoln Legal Aid Inc. Send your questions to The Law Q&A, 302 N. First St., Champaign, IL 61820.


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