FOIAILLINOIS

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  • Appeals Court rules reporter does not have to reveal sources

    As reported in the Chicago Sun-Times

     

    State appeals court: Reporter will not have to disclose source

     

    A reporter previously held in contempt of court while covering a grisly Joliet double-homicide will not have to disclose his source, a state appeals court ruled Monday.

    The court reversed the September 2013 decision of a Will County judge to find Patch.com reporter Joseph Hosey in contempt for not revealing how he acquired detailed reports of the stranglings of Eric Glover and Terrance Radkins.

    The contempt order and fines lobbied against Hosey were also vacated, the court ruled.

    In August 2013, a Will County judge ordered Hosey to turn over all of his documents relating to the January 2013 killings of Glover and Rankins. If the material did not reveal the source, Hosey would have to sign a sworn statement, telling who have gave him the records, when and how, the judge said.

    The bodies of Glover and Rankins, both of Joliet, were found Jan. 10 in the Hickory Street home of Alisa Massaro, who is charged in the murders along with Bethany McKee, Joshua Miner and Adam Landerman.

    Hosey used police reports he obtained to write stories about the killings. McKee’s lawyers want to know who leaked the reports and asked the judge to require Hosey to be questioned under oath.

    Hosey first exposed the salacious claims that Massaro and Miner had sex on the bodies of the victims.

    In its opinion issued Monday, the state court also acknowledged the amicus curiae brief the Chicago Sun-Times and several dozen other media organizations filed in support of Hosey.

    Appellate Court Ruling can be found at:  https://www.scribd.com/doc/250218838/Appellate-Court-of-Illinois-reverses-contempt-ruling

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  • Politician’s Suit Against Newspaper Thrown Out; Ordered to Pay Newspaper’s Attorney Fees

    In a ruling with important implications for newspapers and the public throughout Illinois, on November 18 DuPage Circuit Court Judge Dorothy French Mallen dismissed a defamation lawsuit [DuPage case number 14 L 413] filed by Winfield Village Trustee Tony Reyes against his community’s struggling sole newspaper, The Winfield Express.

    The newspaper published an account of a citizen’s remarks addressing a public meeting of the Winfield Plan Commission concerning a theoretical future development. The citizen made reference to a controversial action by the local high school board in 2004 to sell some valuable public property to the low bidder at a price almost $6 million less than another bid. The article then described for the reader the history of the transaction, including that the developer soon resold the property for an $8 million profit. The citizen was concerned that one of the persons on the high school board back then, Mr. Reyes, was now on the village board and he feared a repeat.

    The article also noted that an outside real estate attorney hired after-the-fact to review the transaction wrote that there “appears to be a violation of the spirit of a statutory requirement that school boards attempt to liquidate their properties at the highest price.” The article concluded with various rhetorical questions residents still ask about the matter, including speculation about bribery, but reminded readers that prosecutors had never investigated the transaction and that everyone involved remains legally innocent of any wrongdoing.

    Without first contacting the newspaper to complain, submit a statement, or request a retraction, Mr. Reyes filed his lawsuit shortly after the article was published, claiming that it defamed him and cast him in a false light. Mr. Reyes, who has vehemently denied any wrongdoing in connection with transaction, has further claimed that the transaction was the best deal offered to the school district at the time.

    A tactic often used by developers and others who want to shut down criticism is to file a frivolous suit against a critic or ringleader for a breath-taking amount of money, knowing that other members of the public will be frightened to raise their voices lest they too be sued. Even though innocent, the costs and trouble of dealing with a lawsuit have a chilling effect that scares others into silence. That technique is known as a Strategic Lawsuit Against Public Participation (SLAPP).

    “Fortunately, in 2007 Illinois passed an anti-SLAPP law, called the Citizen Participation Act (CPA), that allows such suits to be quickly dismissed,” says Maryam [correct] Judar, executive director of the Citizen Advocacy Center that the newspaper turned to for help when the suit was filed. The non-profit Center assists the public in exercising its rights under the Sunshine Laws to hold local governments accountable, and it contacted The Collins Law Firm to represent the newspaper.

    The newspaper’s attorney filed a motion for dismissal under the Citizen Participation Act requesting not only that the suit be dismissed, but further requesting that the court order that Mr. Reyes pay the newspaper’s legal fees. The motion won.

    The judge found that the suit was without merit, filed in retaliation against the paper for a story he did not like, and was intended to chill further criticism. Mr. Reyes has been barred from re-filing his suit, and ordered to pay the newspaper’s legal expenses and attorney’s fees. “Judge French Mallen is one of the most well-respected judges in DuPage County for her careful reading and consideration of all the motion papers and legal authority,” says Robert Dawidiuk, a partner at The Collins Law Firm who argued the case for the newspaper. “Her decisions are well thought out and reasoned. We were fortunate in this case because the CPA is still somewhat of a developing area of law.”

    In her ruling, Judge French Mallen went through the newspaper article point-by-point, dismissive of each complaint on various grounds. She summed up, saying “the lawsuit is meritless because every one of those statements that is complained about either doesn’t refer to Mr. Reyes specifically, is true, is innocent construction, or is opinion. None of it rises to the level of defamation. …. So I am finding that this is a meritless lawsuit in that the statements are not defamatory and there is no proof of any actual malice. …. The plaintiff has not provided clear and convincing evidence that the paper and Mr. Greer’s motivation was not solely to participate in the constitutionally-protected free speech and government.”

    Mr. Reyes was ordered to pay the newspaper’s legal costs, a rarity in American courts, but specifically authorized and required by the Citizen Participation Act as a deterrent against filing SLAPP actions to stifle public discussion.

    Standing outside the courtroom, Mr. Greer said “I think that the judge got it right and this decision should stand if appealed. It is important to our democratic process that public officials and politicians can be questioned and challenged with tough questions in the public forum – especially newspapers.”

    Mr. Reyes did not attend court, and his attorney, Thomas E. Sullivan, did not volunteer any opinion on whether they would appeal.

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  • CAC calls for action to block override attempt of HB 3796

    The Citizens Advocacy Center today is calling for support to block an attempt by the state legislature to override Gov. Quinn’s veto of HB 3796.

    “As we suspected, it looks likely that the Illinois General Assembly will attempt to override the Governor’s veto on HB 3796 and may be brought up for a vote as early as today,” Maryam Judar, CAC executive director said.

    According to Judar, this problematic bill was vetoed by Governor Quinn. For details read HB 3796 Fact Sheet and Top 10 Reasons Why Illinois General Assembly Should vote NO on the CAC website, Citizen Advocacy Center

    Judar says it is imperative for journalists and anyone else interested to “call your state representatives in the house and senate right now.”  Persons can find their representatives at this link  Legislator Locator.

    Call to tell them you oppose HB3796 as this bill severely curbs the ability of the public to monitor government activity.

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  • Use of FOIA prompts action by Quinn

    The following article, which was published in July 3 The Daily Herald, chronicles an action taken by Gov. Pat  Quinn based on information received through the Freedom of Information Act  by For the Good of Illinois.

    Email prompts Quinn to withhold $20 million in funding for COD

    By Robert Sanchez

    The College of DuPage won’t receive a $20 million state construction grant now that Gov. Pat Quinn has seen an email detailing President Robert Breuder’s strategy to secure the long-promised funding for the Glen Ellyn school.

    “The tactics used by the president in his email” convinced the governor not to release the $20 million the school hoped to use for a Teaching and Learning Center, a Quinn spokesman said Wednesday.

    “We are suspending the possibility that they can submit a project for that funding,” David Blanchette said.

    COD spokesman Joseph Moore said the school did not have a comment Wednesday evening but may have one Thursday.

    The controversy centers on an email Breuder sent May 9 to college trustees detailing his plan to publicly thank Quinn during commencement ceremonies for committing to release the grant money, which COD has waited a dozen years to receive.

    “When I introduce Governor Quinn at commencement, I want to help our cause (getting the $20 million released sooner rather than later) by thanking him for his commitment in front of 3,500 people,” Breuder wrote. “There are many voters in our district. Please keep November 4 in mind.”

    Blanchette said $25 million in capital funds were appropriated for COD in 2009 by the state legislature as part of the Illinois Jobs Now! program. To date, $5 million has been obligated toward the demolition of structures on the Glen Ellyn campus.

    Blanchette said the remaining $20 million hasn’t been committed or approved by the state. He said Quinn won’t release that money for construction projects at COD because of what Breuder wrote.

    In part of Breuder’s memo, he told trustees “There is always the option of telling the Governor we want the money, will bank it until we figure out how to use it, and then build something.”

    “We have no tolerance for any misrepresentation of how funds will be used,” Blanchette said.

    Breuder’s email was made public last week by an Elmhurst-based government watchdog group that obtained it through a Freedom of Information Act request.

    The group, For the Good of Illinois, accused Breuder of coming up with an “unplanned” classroom building proposal to help secure the $20 million.

    Breuder countered this week by providing documentation showing the college has been planning for at least a year to construct a classroom building. The school is operating at more than 90 percent capacity during peak hours and needs to expand its facilities if enrollment continues to grow as projected, COD officials said.

    Trustees in March agreed to set aside $33 million in reserve money for the Teaching and Learning Center. Last week, the board approved the project so it can proceed — with or without the state’s help.

    School officials say preliminary plans call for the center to house several 35-seat general purpose classrooms, a smaller number of 25-seat general purpose classrooms, two 50-seat general science classrooms, four 25-seat computer classrooms and a computer lab.

    In addition, the building likely will include administrative space, office space for the faculty, a student commons area, a multipurpose room and unfinished space for future development.

    Breuder said the original pledge for the state grant dates to 2002, when it was announced that community colleges would get money to replace temporary buildings with permanent ones.

    While the state already has given COD $5 million, Breuder said his internal email to trustees was intended to identify a plan for getting the rest of the promised grant money released.

    Still, Adam Andrzejewski, chairman of For the Good of Illinois, said Breuder pressured the COD board to fast track the classroom project to obtain the $20 million state grant.

    “The COD trustees quite obviously have a president whose leadership style and public actions are very troubling,” Andrzejewski said. “The trustees need to reassert control of school governance.”

    He said Quinn “made the right call” by deciding to withhold the grant money.

    “Until today, Dr. Breuder’s entire strategy was coming to fruition in real-time,” Andrzejewski said. “The only piece missing was Governor Quinn granting the money. After media pressure, thankfully, some sanity finally resulted.”

    Kathy Hamilton, the vice chairman of the COD board, said she had not spoken to the rest of the board as of Wednesday and was speaking as a private citizen.

    “The board has a responsibility to review carefully any allegations of wrongdoing,” she said in an email, “and also has the responsibility to assess the repercussions of Governor Quinn’s statement.”

    Copyright © 2014 Paddock Publications, Inc. All rights reserved.

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  • Viewpoint: When all is said and done, FOIAs are just part of doing business

    Statistics, an old editor once said, can be squirrely things. His favorite example was this – if you have 10 women in a room and one woman is pregnant and the other nine are virgins, statistically, all 10 are 10 percent pregnant and 90 percent virgins. To this day, I think he had too much time on his hands.

    Pregnancies aside, his point is well taken – with a little mathematical ingenuity, you can twist statistics any way you want.

    If you take into consideration a recent report by the Daily Herald, many municipalities are being overrun with FOIA requests, some increasing by as much as 50 percent in the past two years. Villages are also noticing that with the increase in requests comes an increase in costs.

    But why the increase? Is there a plethora of public watchdogs coming out of the woodwork to see how their village government works? Possibly. However, Herald reporter Melissa Silverberg noted in her report that many municipalities attribute the increase to the fact that information from police departments that used to be easily accessible now requires a FOIA request. The reality is that some departments do that in a way to curtail the number of requests by folks who just want to look at police reports.

    Silverberg told me in an email that what prompted the story was a discussion of FOIA costs during a budget meeting in Arlington Heights. Silverberg cites only Assistant Village Attorney Robin Ward. The time spent responding to FOIA requests “…is significant,” Ward said. “There are weeks we spend 50 to 60 percent of our time on it; other times it could be 5 percent.” No costs for handling FOIA requests in Arlington Heights were cited.

    For that matter, no municipality cited costs as a hardship. Silverberg cited only Hawthorn Woods, which reported that it cost $4,247.59 to handle 85 requests. Those costs, the report said, were for copying, staff time and legal costs.

    Hawthorn Woods appears to be an anomaly. According to Megan Fulara, Deputy City Clerk in Highland Park, The city handled 789 FOIA requests in the past 12 months. She noted in an email that “The great majority of requests are responded to electronically; therefore no ‘cost’ is incurred. Unfortunately, we cannot quantify the labor of our staff in the research and response time for each of these requests so the actual material cost of responses (data CDs, postage, reproduction of documents) is negligible.”

    Fulara noted that the numbers do not include transactions by the Highland Park Police Department, which in the past 12 months handled 186 transactions totaling $4,409 for copies of accident reports.  The department charges $5 for each police report.

    Rolling Meadows spends about 21 hours a week handling FOIA requests, but FOIA officer Ginny Cotugno says it’s hard to pinpoint the cost for processing FOIA requests because “This amount of time would vary greatly depending on the type of request and the research involved in some of these requests.  It could go much higher and then could be a lot less.”

    In nearby Buffalo Grove, the Herald reported that the village had 954 FOIA requests in 2013, up from 664 in 2009. Village Manager Dane Bragg says staff may spend 10 hours a week, but since they cross departmental lines, the cost depends on the level of staff handling the request.

    But while much of the focus was on the impact FOIA requests had on municipal operations, it appears as though park districts and school districts have not seen the onslaught, nor expense, of processing FOIA requests.

    Stevenson High School, for example, had only nine FOIA requests from June 2013 through May of this year, according Public Information Officer Jim Conrey.

    The state’s largest high school district, Palatine-based School District 211, reported 62 requests in the past 12 months, which cost the district an estimated $20,000, notes Lauren Hummel, Chief Operating Officer-Elect.

    Meanwhile, Arlington Heights-based Township High School District 214, the state’s second largest high school district, received 50 FOIA requests in the 12-month period between March 2013 and March 2014. District FOIA officer Venetia Miles said the paid $1,150.50 in attorney-related fees. This number does not include district staff time.

    North Suburban District 225, which includes Glenbrook North and Glenbrook South high schools, said it received “14 total FOIA requests in the past 12 months,” Rosanne Williamson, Assistant Superintendent for Educational Services, noted in an email. Williamson added that “Some are very simple to respond to while others cause us to incur legal expenses in consulting with our attorney regarding redaction of information and/or interpretation of the rules governing FOIA. Some of the more onerous requests take staff time to prepare documents and gather e-mails in the context of the request.”

    Even the Buffalo Grove Park District reported little FOIA activity, saying it received 11 FOIA requests from April 2013 through May 2014. Like other agencies, it does not have a cost associated with processing the requests.

    So how big of an issue is it? In a letter submitted to the Daily Herald, Maryam Judar, executive director of the Citizens Advocacy Center, wrote that “Public bodies in Illinois should be ashamed of themselves when they complain about FOIA requests.  These public bodies continually frame FOIA as a burden and refuse to recognize that complying with FOIA is a cost of doing public business. Public bodies that complain would do better to embrace public participation and be proactive to make records public as they are created; not just the easy routine records. If the proportion of public record requests made by individuals, as compared to commercial requests, has increased, it signals that people are aware of the important civic tool of FOIA and how to use it in becoming better-informed about government operations.”

    Amen.

    Of course, a colleague of mine on the Chicago Headline Club Board of Directors had an easy solution.  “I say put your PUBLIC documents online and you won’t have to spend time digging them up.”

    Works for me.

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  • Headline Club to Quinn: Don’t further limit FOIA

    The Chicago Headline Club today urged Gov. Pat  Quinn to veto HB 3976, which sets new limits on the Freedom of Information Act.

    The Headline Club’s statement says:

    The Chicago Headline Club is dismayed by the quick action taken by the Illinois legislature on HB 3796, which puts new limitations on the state’s Freedom of Information Act.

    In essence, the bill, if signed by Gov. Pat Quinn, “…adds provisions to the Freedom of Information Act to create a category of requests called “Voluminous Requests.” This is in addition to the other provisions in the FOIA that enable public bodies to negotiate FOIA requests, which are the recurrent requester provision and the unduly burdensome provision.

    What it does is add another barrier that blocks transparency by public agencies.

    The Chicago Headline Club urges Gov. Quinn to veto the measure so that Illinois residents can have open access to public records and proceedings at open meetings.

    “This bill does little to enhance and preserve transparency by public agencies,” Fernando Diaz, president of the Chicago Headline Club, said. “It is imperative that Gov. Quinn maintain a posture of open and transparent government by vetoing this bill.”

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  • Senate passes HB3796; sent to Quinn

    The Illinois Senate today passed HB3796 that calls for changes in the state’s FOIA guidelines.

    According to the Citizen Advocacy Center:

    The bill adds provisions to the Freedom of Information Act to create a category of requests called “Voluminous Requests.”  This is in addition to the other provisions in the FOIA that enable public bodies to negotiate FOIA requests, which are the recurrent requester provision and the unduly burdensome provision.

    The voluminous request provisions:

    May be utilized by the public body if more than 5 individual requests for more than 5 different categories of records, or a combination of requests asking for public records from 5 different categories in a 20-day period;

    Extend the timeline by which the public body must correspond with the requester;

    May result in the public body calling the (amended) voluminous request as “unduly burdensome”.

    Contradict the FOIA provision that allows requesters to INSPECT original documents (an issue decided by an Illinois appellate court in DesPain vs. City of Collinsville), because the bill allows the public body to point to postings of records or information on its website as a sufficient response to the FOIA request–WITHOUT certifying that the online copy is a “true and accurate” copy of the original.

    Requesters routinely ask for documents from more than 5 categories in monitoring government activity.  For example, for a zoning hearing on a proposed permit, a requester might want documents from the:

    • Zoning Commission
    • Development, Planning & Zoning Committee
    • Finance Department
    • Economic Development Commission
    • Public Affairs & Safety Committee
    • Tax Increment Finance Joint Review Board
    • Correspondence between elected officials and staff on the matter at hand and
    • Minutes of regular board meetings (that, contrary to the law, may not be posted online).

     

    It is important to note that the FOIA is “Intent-Neutral”–the reason that the requester wants public records is not a consideration that the public body should make in complying with the request.  A document evidencing government business is presumed to be public– or it may through clear and convincing evidence be withheld through an exception, or an exemption outside the FOIA statute may exist.  These are the only considerations that a public body may take in responding to a FOIA request.

    It should be noted that the unduly burdensome provision is a workable provision–it requires the public body to ask the requester to narrow the request to manageable proportions.

    This bill is partly in reaction to those FOIA requesters who avoided the label of “recurrent requester” by putting their FOIA requests in one letter or email to the public body–an unintended consequence of the recurrent requester provision.  If you remember, a recurrent requester submits 7 FOIA requests in 7 days, 15 FOIA requests in 30 days, or 50 FOIA requests in 365 days.  At the very least, the recurrent requester provision should be removed from the FOIA, if the voluminous request provisions pass and get signed into law.

    While non-profits, scientific, or academic organizations, and the media are exempt from the voluminous request provisions, this bill severely curbs the ability of the public to monitor government activity.

    Both the Citizen Advocacy Center and the Chicago Headline Club, the Chicago chapter of the Society of Professional Journalists, are urging Gov,. Quinn to veto HB3796.

     

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  • Citizen Advocacy Center urges challenge to bill that would change FOIA guidelines

    The Citizen Advocacy Center is urging people, especially journalists and public watch dogs, to contact their state senators to urge them to vote against HV 3796.

    According to the CAC’s web site, HB 3796, is “problematic” and was only introduced last Friday afternoon.  It  passed the House on Memorial Day, and will pass the Senate TODAY to the Senate sponsors, who expect a unanimous vote.  Complete details and links to contact information for state senators can be found at http://www.citizenadvocacycenter.org/cac-blog/urgent-legislative-alert-call-your-representatives-in-springfield-to-oppose-passage-of-hb3796

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  • Supreme Court: State’s Attorneys subject to public records laws

    The Illinois Supreme Court ruled Thursday that when it comes to public records laws, state’s attorneys are just like other government officials.

    The Associated Press reports that  the unanimous ruling forces county prosecutors to release public records under the Freedom of Information Act.

    The law is intended to improve government transparency. The case began when a reporter asked for emails between employees in the Kendall County State’s Attorney’s office. The office denied the request, claiming it was part of the judicial branch of government, which is exempt from the act.

    An appellate court found that state’s attorney offices aren’t public bodies subject to the open information law. The state Supreme Court reversed that ruling. State’s attorneys prosecute crime but also act as lawyers for county boards, advising officials on zoning issues, contracts and more.

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  • Daily Herald Report: Municipalities find increased costs as FOIA requests climb

    According to the report in The Daily Herald:

    The law allowing residents and business to request public records may be dubbed the Illinois Freedom of Information Act, but as municipalities are seeing more and more requests come in each year, officials say the cost to comply with the law is anything but free.

    A Daily Herald survey of 55 municipalities showed that the number of Freedom of Information Act requests received has increased in nearly all towns over the past few years that officials have been tracking the numbers. Between 2011 and 2013, 17 suburbs saw an increase of more than 25 percent. Towns including Aurora, Hampshire, Des Plaines and Prospect Heights saw the number of requests increase by more than 50 percent.

    The full is at http://www.dailyherald.com/article/20140504/news/140509351/print/

    Daily Herald FOIA Report

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