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

Yikes, they might be.

The FOIA legislation declares flat out that it is the policy of the state that all persons are entitled to full and complete information regarding the affairs of government. The records of government should be accessed by its citizens so that its citizens can better monitor government and make more informed political judgments about it.

Thus, FOIA is set up so that all government records are available to persons requesting certain documents unless those requested documents are specifically excluded under the act.

The presumption is thus for openness, and there is a high burden on the governmental entity to prove a requested document is excluded from disclosure under the act.

The issue really becomes muddied when a private business contracts with government to provide services.

Are the records of that business then subject to FOIA?

The act specifically says that records in the possession of a party that contracts with a public body to perform a governmental function on behalf of the public body directly relating to government function shall be a public record (thus subject to FOIA).

This legislation is designed to combat governments which might avoid FOIA by privatizing governmental functions by contractual delegation to a private business.

A possible example might be a municipality contracting with a private utility company. That utility provider’s business records possibly might then be a public record under FOIA. This is true even if the company records were never given to the municipality.

Only those records that directly relate to the performance of that governmental function (supplying the utility to the municipality’s residents) are subject to disclosure. However, as a practical matter, that could be a significant portion of that company’s records if providing a utility for the city is its main business.

Courts have ruled that private entities that get too cozy with a governmental entity may also be declared as performing governmental duties of that governmental entity for FOIA purposes. Such as private not-for-profit foundations who fund-raise for public universities but do so in a manner suggesting the foundation is actually an arm of that public university.

Even when subject to FOIA, the act provides certain information can be exempted or redacted if there is some federal or state law or regulation implemented by federal or state authorities specifically preventing disclosure. Examples are criminal investigations, or mental-health records, or trade secrets held by the state.

Another big area for exclusion from disclosure under FOIA available to private businesses are trade secrets and commercial or financial information of the business.

The criteria for protecting such sensitive information are that it was obtained from someone where such information is furnished under a claim that it is proprietary or privileged, and disclosure would cause competitive harm to the owner of such information.

So, private businesses need to tread carefully when contracting with government entities to avoid the minefield of FOIA disclosure.

It is the ultimate conflict between the openness necessary for democratic government and the secrecy necessary for making money.

Such is the American experiment.

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

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