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Monday, July 1, 2013

Illinois Appellate Court tells city: Cough up public records

Posted By on 07.01.13 at 03:00 PM

For two years, Mayor Rahm Emanuel has been fighting to keep the public from seeing a public document on the use of taxpayer resources.

That may not sound fitting for the mayor who has repeatedly promised to create "the most open, accountable, and transparent government that the City of Chicago has ever seen." But it's the truth—as I can attest after suing the city over the issue, and then listening to city attorneys make a series of arguments in court against releasing the three-year-old report on police staffing.

Yet the issue goes well beyond a single obscure—and, by this time, potentially outdated—document from 2010. On Friday the Illinois Appellate Court ruled that the city was required to disclose the report—and in doing so, the court appears to have strengthened the state's Freedom of Information Act in favor of openness for citizens and the press.

Mayors can't publicly tout their work to improve the city, then turn around and claim the records of that work are private. Well, they probably will, but now it might be a little harder for them to get away with it.

As the justices put it: "Clearly, any notion the report was not identified within the meaning of the FOIA cannot be seriously entertained."

This matter started on June 2, 2010, when Mayor Richard M. Daley announced at a press conference that he was moving dozens of police officers from desk to street duty to bolster the fight against violence and drug dealing. Desk-to-the-street announcements are right out of the original political playbook, but to emphasize this wasn't just his idea, Daley said the redeployments were recommended in an in-depth study by a group of professional consultants.

The mayor's speech was subsequently posted on YouTube and summarized in a news release on the city's website.

At the time—as now—a fierce debate was under way in Chicago about the best ways to cope with our deadly outbreaks of violence, including the most effective way to deploy police during a time of reduced budgets. So I thought it would be appropriate to see what else the consultants suggested. I sent the police department a FOIA request asking for a copy of all records generated by the study.

The city denied me, saying my request was too burdensome. I then submitted a narrower request asking only for a copy of the study itself. The city denied me again. This time I was told the study was exempt from disclosure under a loophole in the FOIA that allows public officials to keep records private if they're about preliminary or proposed policies—that is, ideas floated around before they're implemented.

I thought this was rather a curious excuse for keeping the report under wraps. Under the FOIA, records aren't exempt once they're "publicly cited and identified by the head of the public body"—you know, by figures like Daley.

In 2011, with the pro bono help of Professor John Elson and students from the Northwestern School of Law, I sued the city over this and other FOIA rejections.

By then Emanuel had moved onto the fifth floor of City Hall vowing a new era of reform and openness. But it didn't extend to my lawsuit. The mayor continued to instruct city lawyers to fight the release of the 2010 police-staffing report, perhaps because of the precedent it might set to let the public get a glimpse of it.

Last year the city scored a victory when Cook County Judge Franklin U. Valderrama ruled that the study was exempt. It was an interesting decision: the judge agreed with the city that the superintendent of police, and not the mayor, is officially the head of the police department. Since the police superintendent hadn't spoken publicly about the study, the city didn't have to show it to the public.

If you're confused, you're not the only one.

The argument was so tenuous that the city abandoned it by the time the case reached the Illinois Appellate Court. That didn't stop the appellate justices from shooting it down anyway, just in case "this issue may arise in the future." The court confirmed what some of us recognized all along: "the mayor, as the chief executive officer of the City of Chicago, is, by definition, the head of the public body at issue." In other words, the mayor runs things around here.

The case then came down to the definition of "cite" and "identify." It wasn't quite like Bill Clinton's attempt to question what the meaning of "is" is, but city attorneys did argue that Mayor Daley didn't actually "cite" anything, since he only made general references to a "study" and a "report," which might be two different things. They also claimed that I hadn't specified which one I wanted a copy of.

The Illinois Appellate Court rejected this argument down too. Citing such authorities as the Merriam-Webster online dictionary and the two-page transcript of Daley's 2010 speech, the justices ruled that "we find the mayor's repeated references to the report in the press conference satisfy both the definition of 'cite' and 'identify.'"

They also noted that "the City knew exactly which report" I was asking for, since city officials had referred to it when they first denied my FOIA request back in 2010.

In short, Mayor Daley cited the report in public, so it's a public document that citizens can access under the FOIA.

For almost three years, though, Mayors Daley and Emanuel both battled to keep the public from seeing a study about the use of public resources.

The Emanuel administration now has 21 days to decide whether to continue the fight. It will be a good indication of the mayor's interest in letting the public see what sort of transparency he's got in mind.

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