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David Giuliani: Attempts at secrecy stymied

February 23, 2019

Never assume a government agency is on solid legal ground when it rejects a legitimate request for public records.

In a little more than two months, the city of Kankakee has twice backed down on its previous efforts to keep records secret.

This was in response to our requests for correspondence with city vendors. In both cases, the city relented only after we filed complaints with the attorney general’s office, which addresses such issues.

In an interview Friday, Mayor Chasity Wells-Armstrong told me she would prefer that we say that it was the city’s law firm, not “the city,” that made the decision to deny the requests initially. The newspaper’s requests for records go to the law firm, she said.

“I’m doing everything I can for transparency,” she said.

Wells-Armstrong said she trusts the law firm to give good advice.

Last October, we requested the correspondence between the city and its garbage hauler, Republic Services, in a dispute over whether Republic would continue collecting recyclables.

The city denied our request, saying the state’s open records law “exempts from disclosure materials prepared or compiled by or for a public body in anticipation of a criminal, civil or administrative proceeding upon request of an attorney advising the public body.”

This seemed strange because both the city and Republic had already indicated they resolved their dispute.

The city didn’t even bother fighting our complaint. It simply disclosed the records.

In November, we sought the correspondence between the city and Simms Engineering, led by Richard Simms, who managed the city’s utilities department for years until retiring in April. He and the city are embroiled in a battle over payments for software that his company reportedly developed.

In December, the city denied our request. It cited exceptions under the state’s open records law pertaining to attorney-client communications and preliminary drafts and notes. (Yet the agency that manages the regional sewer plant released its correspondence with Simms, which the city knew.)

The city’s excuses were off base. Yes, the city may well sue Simms, but the primary object of the attorney exception is to keep documents secret from adversaries. Simms had already seen the correspondence in question, thus voiding the exception for secrecy.

The reason for the exception for preliminary drafts is to allow government officials to brainstorm ways to deal with situations. But once a communication is sent to an adversary, it is no longer preliminary.

I emailed these arguments to the attorney general, and the city dropped its claims and released the correspondence this week.

As a newspaper, we have the resources to follow up on rejected records requests. But most people don’t. And they lack the platform we have to let the public know when a government body is keeping records secret.

There are legitimate reasons to keep some documents under wraps. But most records should be open. This is because people have the right to know what’s going on in the government they pay for.

WHO’S RESPONSIBLE?

When denying records requests, government bodies are required to list the names of those who participated in the decision.

This is a little-known, rarely-followed provision of the Freedom of Information Act. Legislators likely added this requirement so that top government officials and lawyers cannot hide behind lower-ranking employees when they decide to keep records secret.

In the city government, a lower-ranking employee signs her name to denial letters. She never lists anyone else as being involved in the decisions. And I haven’t bought that she was alone. As it turns, she hasn’t. Mayor Wells-Armstrong confirmed to me that the requests are turned over to the city’s law firm, which makes the calls on whether to release documents.

Following lawyers’ advice is usually good practice. On open records issues, though, attorney often have the wrong instincts. In litigation, lawyers release no more than what is required. And they wage constant battles over whether subpoenas for documents are legitimate.

In government, however, citizens have a right to access public records, even those that may cast a poor light on the government bodies in question. Lawyers’ first instinct is to protect their clients from embarrassment, so they come up with creative dodges for records requests.

But that’s not a good look for public bodies that aim to be transparent.

David Giuliani is a reporter for the Daily Journal. His column “As It Is” expands upon regular news coverage. He can be reached at 815-802-5144 or dgiuliani@daily-journal.com. Follow him on Twitter at @TDJ_dgiuliani.