Articles

Illinois Court Decision Helps Keep 'Public' in Public Records

Thursday, June 19, 2014
by Marc J. Lane

When Illinois' county-based prosecutors, charged with the twin responsibilities of protecting the public and defending the rights of victims, join forces to push back against government transparency, someone needs to cry foul and a higher authority needs to set them straight.

That's exactly what happened last month in the case of Nelson v. Kendall County, when the Illinois Supreme Court unanimously held that state's attorneys are subject to the Illinois Freedom of Information Act, which guarantees the public access to public records.

The high court case was the result of a long-standing dispute between Larry Nelson, an employee of Plano-based WSPY-FM/107.1 and its affiliates, and Kendall County, based on Mr. Nelson's request to see emails between employees in the Kendall County state's attorney's office. Even though he and his employers lost their case first in trial court and then in appellate court, Kendall County called in reinforcements when the action moved to the Supreme Court. The state's attorneys of Cook and LaSalle counties and the Illinois State's Attorneys Association filed a friend-of-the-court brief on behalf of the county and its state's attorney.

The state's attorneys argued that FOIA, which applies only to “public bodies” — the state's legislative, executive, administrative and advisory bodies — doesn't affect Illinois' state's attorneys' offices, which they claim are judicial bodies. While it's true that the method of selection, qualifications for office and compensation of state's attorneys are found in the judicial article of the state Constitution, they don't adjudicate cases. Indeed, since prosecutors, as executive officers, have unfettered discretion to decide which cases to prosecute, they don't — and constitutionally can't — report to the chief judge.

NO SECRETS

Officers of one branch of government simply can't exercise powers reserved to another branch. And so the Supreme Court prudently reversed the lower courts' misguided decisions.

None of this should be surprising. State's attorneys long have honored FOIA requests. As well they should: Society has a legitimate interest in the records they keep. And if state's attorneys had been allowed to exempt themselves from FOIA, they, alone among government officials, would have no duty or reason to act other than secretly.

FOIA fosters public trust, promotes equal access to government and helps prevent abuse of governmental power, and this decision will help preserve journalists' and whistleblowers' access to information about prosecutors' activities and other public records.

Still, narrow exemptions apply: Prosecutors' work product should remain under wraps, and neither prison inmates who try to game the system nor defense lawyers who try to finesse evidentiary rules should be accommodated. When the General Assembly revisits FOIA, as it is soon likely to do given the sweep of the Nelson decision, let's urge our legislators to embrace the Supreme Court's common-sense commitment to government transparency.

Peterborough's problem was daunting: Sixty percent of prisoners serving short-term sentences historically had gone on to re-offend within a year after their release. But policymakers were confident that a solution was within their reach. They attracted private investment to pay experienced social service agencies to provide intensive, multidisciplinary support to short-term prisoners, preparing them to re-enter society and succeed outside the penal system. - See more at: http://www.chicagobusiness.com/article/20131007/OPINION/131009850/a-new-kind-of-futures-contract-for-illinois#sthash.ThgxeiFt.dpuf

The world's first social impact bond, or SIB, was introduced in 2010 to fund innovative social programs that realistically might reduce recidivism by ex-offenders in Peterborough, England, and, with it, the public costs of housing and feeding repeat offenders. Prudently building on the strengths of that initiative, Illinois Gov. Pat Quinn is rolling out SIBs to help solve some of the state's most vexing social problems.

A SIB isn't a traditional bond where investors are guaranteed a fixed return but a contract among a government agency that agrees to pay for improved social outcomes, a private financing intermediary and private investors. SIBs shift the risk of experimenting with promising but untested intervention strategies from government to private capital markets, with public funds expended only after targeted social benefits have been achieved.

Peterborough's problem was daunting: Sixty percent of prisoners serving short-term sentences historically had gone on to re-offend within a year after their release. But policymakers were confident that a solution was within their reach. They attracted private investment to pay experienced social service agencies to provide intensive, multidisciplinary support to short-term prisoners, preparing them to re-enter society and succeed outside the penal system.

The government decided which goals would be supported, but exactly how those goals would be achieved was left to the private sector. It was the investors, through a bond-issuing organization, who ultimately endorsed the allocation of investment proceeds — how much would be invested in job training, drug rehabilitation and other interventions.

If the Peterborough plan eventually shrinks recidivism rates by 7.5 percent or more, the government will repay the investors' capital and share the taxpayers' savings with them, delivering up to a 13 percent return. If the target isn't hit, the investment will have failed and the government will owe the investors nothing.

Illinois' SIB effort was spearheaded by the state's Task Force on Social Innovation, Entrepreneurship and Enterprise — the governor's think tank on social issues, which I am privileged to chair — with support from Harvard University's John F. Kennedy School of Government, the Rockefeller Foundation and the Aurora-based Dunham Fund. A request for information issued by the Office of Management and Budget on May 13 yielded responses from service providers eager not only to reduce recidivism here but also to create jobs, revitalize communities, improve public health outcomes, curb youth violence, cut high school dropout rates and alleviate poverty.

Now the governor has issued a request for proposals intended to spur better outcomes for Illinois' most at-risk youth — by increasing placement stability and reducing re-arrests for youth in the state's Department of Children and Family Services, and by improving educational achievement and living-wage employment opportunities justice-involved youth most likely to re-offend upon returning to their communities.

Kudos to Mr. Quinn for bringing SIBs to Illinois. May they soon start delivering on their promise.

- See more at: http://www.chicagobusiness.com/article/20131007/OPINION/131009850/a-new-kind-of-futures-contract-for-illinois#sthash.ThgxeiFt.dpuf
The world's first social impact bond, or SIB, was introduced in 2010 to fund innovative social programs that realistically might reduce recidivism by ex-offenders in Peterborough, England, and, with it, the public costs of housing and feeding repeat offenders. Prudently building on the strengths of that initiative, Illinois Gov. Pat Quinn is rolling out SIBs to help solve some of the state's most vexing social problems. - See more at: http://www.chicagobusiness.com/article/20131007/OPINION/131009850/a-new-kind-of-futures-contract-for-illinois#sthash.ThgxeiFt.dpuf

Marc J. Lane is a Chicago attorney and chairman of the Illinois Task Force on Social Innovation, Entrepreneurship, and Enterprise.

Reprinted from Marc Lane's June 19, 2014 editorial which appeared in Crain's Chicago Business. Crain Communication Inc.'s permission is gratefully acknowledged. Copyright © 2014 by Crain’s Communications Inc.



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