Weeks into the new fiscal year, Governor Bruce Rauner and house speaker Michael Madigan can’t agree on a budget, a pension plan, a policy agenda, or especially a scapegoat for the ongoing mess, with each pointing to the other as the guy responsible.
But they’re of like minds on one key point: neither thinks he needs to let the public know what he’s doing on taxpayer time.
In fact, while Madigan is arguably the most powerful politician in the state, he says he’s not subject to its most widely used government transparency law, the Freedom of Information Act, because it doesn’t apply to individual legislators. Madigan was one of the sponsors of the current version of the act, which was passed in 2010.
“Speaker Madigan is not a ‘public body’ under the FOIA and therefore has no legal obligation to respond to requests addressed to him under the Illinois FOIA law,” wrote Brad Bolin, the FOIA officer for the Illinois house,
Plenty of citizens would argue that Madigan has a civic and ethical obligation to open his doings to the public, even if the law doesn’t mandate it. But that’s not the view of the speaker. Revealing his meeting schedule, even long after the events have occurred, could stifle the political process and violate the privacy of people seeking Madigan’s help, according to Bolin.
“The publication of the schedules and meeting calendars of a legislator would infringe upon and chill the deliberative process,” Bolin wrote.
Bolin sent the letter in response to a FOIA request I submitted last month asking for copies of Madigan’s schedules and meeting logs from April through June of this year.
That was a critical time during which Madigan and Rauner traded accusations about who was thwarting a budget deal—much as they are now.
The governor has already declared that he intends to conceal records showing who has access to his office and what he’s up to. In May his office responded to a FOIA request by producing copies of his calendars and appointment schedules for three months—but more than 150 meetings were blacked out, a rate of more than one secret meeting a day.
“The Governor’s Office was under no obligation to provide the requested appointment calendars to Mr. Dumke because these documents are not ‘public records’ under FOIA,” an attorney for the governor argued in a July 16 letter to the Public Access Bureau, a division of the Illinois attorney general’s office that rules on FOIA disputes.
Despite the governor’s claim, the attorney general’s office has previously ruled that the public has a clear right to know what executive officeholders are doing on taxpayer time.
The Public Access Bureau is currently looking into the governor’s attempt to keep his schedule private. That means the issue will be examined by an employee of attorney general Lisa Madigan, the speaker’s daughter.
The speaker himself has made it clear which side he’s on. He believes elected officials have every right to keep their daily business from the public.
Last month I sent my FOIA request for Speaker Madigan’s schedule to his offices in Chicago and Springfield as well the clerk of the Illinois house.
No one from Madigan’s office responded.
But I received a five-page letter from Bolin. While he is formally an employee of the house clerk, Bolin responded for both the legislative body and for Madigan himself. He noted that he had consulted with attorneys for both Madigan and house Republican leader Jim Durkin.
Bolin wrote that the house clerk didn’t have copies of Madigan’s appointment schedule and calendar, but it wouldn’t share them even if it did. To back up his position, he cited the precedent set in a 1991 case, Quinn v. Stone.
Former alderman Bernard Stone—never a fan of open government or the reformer types who pushed for it—refused to comply with a FOIA request for records showing how he’d spent public funds. The Illinois Appellate Court then agreed that he didn’t have to. According to that ruling, only the heads of public bodies—including the “president, mayor, chairman, presiding officer, director, superintendent, manager, supervisor or individual otherwise holding primary executive and administrative authority”—have to comply with the state Freedom of Information Act.
The Illinois house is clearly a public body, but Bolin maintains that Speaker Madigan doesn’t qualify as its “presiding officer”—he’s just an individual legislator, and it was never the intent of the General Assembly to force legislators to respond to FOIA requests.
That’s true, says state senator Kwame Raoul, one of the sponsors—along with Madigan and 21 others—of a 2010 law strengthening the FOIA. Requiring individual legislators to produce records of their work would interfere with their “core function” of exchanging ideas and crafting laws, he says. “We are not the executive branch—we are not day-to-day decision makers. We make policy.”
Yet Madigan doesn’t think anyone in office, even a governor, should have to produce “materials that would track the daily business of the public official,” Bolin explained.
I never asked for records showing what was said at meetings with the governor or speaker—just who was on their past schedules.
No matter—revealing who attended these meetings could stifle the process of politics and policy making, Bolin wrote. “The ‘deliberative process’ exemption protects the communications process and encourages frank and open discussions within state government.”
In other words, the speaker doesn’t believe the public has the right to know what public officials are doing or talking about behind closed doors.
On that point Speaker Madigan and Governor Rauner are in full agreement.