REGULATORY AGENCY TRANSPARENCY UNVEILED A LITTLE

Much political lip service has been given to the need for transparency in decision making by administrative agencies. However, it seems that all that talk often does not translate into reality.

Recently, an Illinois Appellate Court decision focused on transparency of two related state regulatory agencies.* A large oil refinery filed several applications with the Illinois Environmental Protection Agency ("EPA") for certifications that certain infrastructure improvements were "pollution control facilities." Certifications would result in preferential property tax treatment. Under the procedure, EPA evaluates such applications and makes recommendations to the Illinois Pollution COntrol Board ("PCB'), which makes the decisions whether to certify.

A group of local government taxing bodies, including school districts, served a Freedom of Information request ("FOIA") on EPA asking for copies of the refinery's applications. EPA denied the request.

EPA recommended that the PCB grant the first group of applications. The local taxing bodies filed petitions to intervene in the PCB proceeding. However, the same day, the PCB granted certification and dismissed the petitions to intervene as moot.

The local bodies filed a motion for reconsideration. The PCB held a "closed deliberative session" on the motion. At a subsequent open session the PCB announced its denial of the motion, without discussion or permitting public comment. When other applications of the refinery came before the PCB with EPA recommendations, the local bodies filed additional petitions to intervene. The PCB held another "closed deliberative session" to discuss the additional petitions to intervene. At a subsequent open session, the PCB voted to deny the petitions and issued a written decision.

The local bodies filed suit for declaratory and injunctive relief alleging that EPA violated FOIA law and the PCB violated state open meetings law. The trial court granted summary judgement for defendants.

The Appellate Court reversed. It agreed with the claim that EPA violated FOIA, stating "the Agency clearly violated FOIA by not providing the public records plaintiffs requested as statutorily mandated."

THe Illinois Open Meetings Act requires that all meetings of public bodies be open to the public, unless certain specific exceptions apply that permit closed sessions. The PCB asserted that its "closed deliberative sessions" were permitted under the exception for consideration of "evidence or testimony" presented at a hearing. The Appellate Court rejected the assertion, stating: "all citizens of the affected municipalities had an interest protected by the overarching policy in this state that the people's business be conducted openly to inform the public. Given that policy, we reject defendants' claim that approval or disapproval of that issue was properly considered in a closed session instead of the clear sunshine of public scrutiny." The Court also found that the PCB open sessions violated the Open Meetings Act because public comment was prohibited.

Most state laws, as well as federal law, have some form of FOIA and open meetings requirements. The Court's decision may offer some hope for greater transparency in regulatory agency proceedings.

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*Roxana Community Unit School District No. 1 v. EPA,
2013 IL App (4th) 120825 (2013)

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