Check CU has covered numerous Freedom of Information Act (FOIA) violations by the City of Urbana, but it seems there is no end to uncovering the extent of illegal activity committed by Urbana officials regarding public records.

Urbana resident Tracy Chong has submitted a number of FOIA requests to the City over the past several years. She has presented findings from her research at numerous City Council meetings and she runs a small news website where she posts articles, as well as records retrieved through FOIA, so that the public can access them: www.cuperspective.org

Chong has often been credited by public officials and residents for bringing a data and fact-driven critique to issues of public concern.  Such an effort takes considerable time and research, but often times established politicians and government employees would much prefer to conceal their activities.

Urbana public officials, under the guidance of Mayor Diane Marlin, have employed a number of different tactics to inhibit access to public records, including employing unlawful exemptions and redactions, charging illegal fees, employing unlawful exemptions and charging illegal fees at the same time, and unlawfully forcing requesters to show government ID before allowing them access to records, to name a few.

As the Illinois Attorney General and local courts chase down these violations in response to complaints and lawsuits, it seems Urbana officials are constantly evolving their tactics to deny public records.

On April 17^th 2020, Ms. Chong was ambushed with an email from Urbana City Clerk and FOIA Officer Charlie Smyth wherein Smyth claimed that she was now a “recurrent requester”.  Smyth asserted that since Chong had submitted seven FOIA requests within a week, he could treat her as a recurrent requester, charge her huge fees, and significantly delay his response time for public records.

Smyth, in an apparent last-hurrah against pesky concerned residents, issued his recurrent requester declaration against Ms. Chong and one other resident immediately before resigning his position as City Clerk.  Smyth’s successors, FOIA Officer Curt Borman, City Clerk Phyllis Clark, Assistant City Clerk Lizabeth Kay Meharry, and FOIA Officer Ross McNeil, continued to employ the same recurrent requester tactics against residents, and named an additional three people as recurrent requesters.  The recurrent requester designation was always followed by months-long wait times on public records (the FOIA law indicates 4 days) and thousands of dollars of illegal fees.

Around the same time that Smyth started making recurrent requester declarations, he along with City Attorney James Simon, also devised a scheme to charge recurrent requesters heavy fees well beyond what is permitted in the FOIA statute.  By charging thousands of dollars in fees, they could effectively halt any individual’s efforts to attain public records.  After Smyth’s departure from office as City Clerk, FOIA Officer Curt Borman and City Clerk Phyllis Clark carried on the fee scheme.

The Illinois Attorney General would later rebuke Smyth, Simon, Clark, and Borman for their bloated fee scheme because the fees clearly violated state law, but these public officials had already weaponized the illegal fees against numerous residents in order to deny public records.

The FOIA law does allow public bodies to declare that someone is a recurrent requester and treat them differently if they so choose.  The problem is that Urbana issues recurrent requester designations illegally.  Charlie Smyth’s modus operadi was to invent circumstances for calling someone a recurrent requester by over-counting the number of FOIA requests they had submitted.  He did this by creating multiple FOIA request numbers for the same request.

Ms. Chong never made the requisite number of FOIA requests to be treated as a recurrent requester.

After Ms. Chong sent a complaint to the Illinois Attorney General (IAG) Public Access Counselor (PAC) on April 30^th, 2020, Assistant Attorney General Matthew Hartman initiated an investigation into Charlie Smyth’s recurrent requester claim. 

Check CU has reviewed hundreds of PAC requests for review, and has never observed a PAC Officer verge on concluding a violation in their initial investigation letter.  However, the miscounting of Ms. Chong’s FOIA requests was so clear that AAG Hartman indicated in his opening letter that it appeared wrong on its face.  Hartman asked Charlie Smyth to explain how he’d determined that Ms. Chong’s FOIA requests made her “recurrent”. 

Though Smyth had issued the recurrent requester declaration himself, he had Assistant City Attorney Curt Borman respond to the IAG’s investigation. At this point, the impropriety was so clear that Borman had no choice but admit that Charlie Smyth had wrongly classified Chong as recurrent.

Curt Borman: “Because Ms. Chong did not submit at least seven requests for records within a seven-day period immediately before her April 15 FOIA request, the April 15 request could not result in her classification as a recurrent requester under Section 2(g). Therefore, Urbana did not properly classify Ms. Chong as a recurrent requestor pursuant to section 3.2 of FOIA based upon her April 15 FOIA request.”

However, Borman only admitted that Smyth had wrongfully treated Chong as recurrent on that one particular FOIA request.  Borman went on to argue that all future FOIA requests from Chong could be treated as recurrent.  Borman issued that response on May 1^st, 2020, and he continued to treat Ms. Chong as recurrent after he was appointed to be the new FOIA Officer in June 2020.  Borman’s successor, FOIA Officer Ross McNeil, continued to treat every request from Ms. Chong as recurrent, exposing her to illegal fees and months of wait time for each records request.

The Attorney General did not issue a response to Borman’s lengthy argument in May of 2020, or anytime in 2020.  Ms. Chong followed up with AAG Hartman on June 4^th, 2020, and Hartman responded on June 8^th, 2020 indicating that he would be issuing a determination, but he never did.

The determination from the PAC was not issued until May 7^th, 2021, more than a year after the initial violation and complaint.  Assistant Attorney General Suzanne Dennis Borland issued the final determination, and it was not unclear: Smyth and Borman had over- counted the number of FOIA requests submitted by Ms. Chong, and she did not qualify as a recurrent requester at any point in time.

Though the PAC determination of violation indicates that the matter has been resolved, they are only referring to the one single FOIA request that spawned the original complaint.  The real implication of the PAC’s determination is that since Ms. Chong never qualified as a recurrent requester, City Clerk Charlie Smyth, City Attorney James Simon, City Clerk Phyllis Clark, Assistant City Clerk Lizabeth Kay Meharry, FOIA Officer Curt Borman, and FOIA Officer Ross McNeil were all unlawfully labeling Ms. Chong as a recurrent requester for the entire year prior.  Their only apparent purpose in doing this was to maliciously deny public records. 

Their scheme was simple: after labeling a resident a recurrent requester, they would delay FOIA responses by months and then assess huge fees (some as high as $700-800 per FOIA request) – when the requester could not pay the fees, they denied the request.

Since April 2020, Ms. Chong emailed Urbana City Council members and spoke at City Council meetings dozens of times, describing in detail how Charlie Smyth had unlawfully labelled her a recurrent requester and how he and other public officials were conspiring to violate the FOIA law.  Mayor Diane Marlin responded to Chong’s complaints about Urbana officials by illegally muting her at public meetings.

During the same time period, countless similar complaints came from other Urbana residents about being charged enormous FOIA fees, being denied records, and being wrongfully labeled as recurrent requesters.  Check CU is aware of the very same recurrent requester scheme formulated by Charlie Smyth and James Simon has been used against several other Urbana residents.

Neither Mayor Diane Marlin nor the Urbana City Council has taken any action whatsoever to investigate the extensive illegal activities of their appointed City Attorneys and FOIA Officers.  None of the named public officials have been held accountable, and the Mayor and City Council continue to name Ross McNeil as the City FOIA Officer.

After the PAC sent their May 7^th, 2021 letter indicating that Urbana officials had been unlawfully labeling Ms. Chong as a recurrent requester, none of the public officials involved issued any statement or apology.

Before publishing, Check CU asked for a statement from Ms. Chong:

“After Charlie Smyth started calling me a recurrent requestor, the City began charging me huge fees and delayed providing the records for months. This really destroyed my ability to obtain and analyze information needed for our community’s call for police reform and accountability. This was deeply disappointing as I had devoted a large portion of my time to provide critical information that Urbana residents depended on, and instead of embracing my reform efforts, City Officials went out of their way to crush them.”

Efforts to further investigate recurrent requester and fee violations by the City of Urbana have been crushed by the same public officials who committed the violations.  When requested, the very same public officials further violated FOIA by denying access to records about how many times they called someone a recurrent requester, and to whom they charged illegal FOIA fees.  The City of Urbana is currently being sued for that information.