On the morning of December 9^th Champaign County Judge Jason Bohm delivered a summary judgment against the City of Urbana in regards to a FOIA lawsuit filed in March.  The judgment forces the City of Urbana to release records related to the investigation of an alleged purse theft by State Representative Carol Ammons – records which Kirk Allen of Parils, IL requested from the Urbana Police Department more than ten months ago in a Freedom of Information Act (FOIA) request.

Though the Urbana Police Department handled the initial investigation and gathering of evidence in the alleged theft, it was later handed off to the Illinois State Police (ISP) and their special prosecutors after State’s Attorney Julia Rietz determined that her office was conflicted out of handling the case.  A number of individuals requested records on the incident, but Urbana has fully denied all of them, at least up until November.  Kirk Allen sued Urbana for the records.

Wednesday’s judgment was the third court hearing since Allen filed his lawsuit against Urbana on March 6^th.  The issuance of a summary judgment at that hearing means that there was little dispute about the facts of the case and the law was clear enough that the judge saw no reason for a full trial.

Not only did Judge Bohm strike down all three FOIA exemptions claimed by Urbana City Attorney James Simon, he gave a scolding lecture about the forthrightness of Illinois State Police (ISP) affidavits supplied by Simon.  Though Bohm did not indicate it explicitly, the inconsistencies he cited rather clearly imply that Simon and the ISP intentionally omitted key details from the court in order to justify denial of the public records.

Simon attempted to argue three FOIA exemptions in defense of denying Allen’s records request:

• 5ILCS140/7(1)(b) disclosure of private information
• 5ILCS140/7(1)(c) disclosure of personal information, clearly unwarranted invasion of privacy
• 5ILCS140/7(1)(d)(i) disclosure of information that would interfere with pending law enforcement proceedings

Judge Bohm immediately dispensed of the first two exemptions, indicating that while redactions of private information, such as phone numbers or social security numbers would be permissible, such an exemption does not allow for “wholesale” denial of the entire record.  Whereas Simon had argued that releasing the police report would constitute an “unwarranted invasion of personal privacy”, Bohm rejected that assertion entirely after personally reviewing the police report and security footage himself.  He said it was “clear” that the records did not constitute an unwarranted invasion of privacy.

Simon’s third exemption relied on the claim that there was an ongoing investigation into the alleged theft.  While the FOIA law does have such an exemption, the exemption is not satisfied by simply claiming that there is an ongoing or pending law enforcement proceeding.  The public body holding the record must articulate why releasing the records would in fact interfere with those proceedings.  Simon was not able to able to offer any such explanation at any of the court hearings, except to repeatedly claim that the ISP urged him not to release the records.

The claim of an ongoing investigation into the alleged theft is what placed James Simon and the ISP in an unfavorable light with the court.  At a hearing on October 16^th, Simon had supplied multiple affidavits dated August 2020 which stated that the investigation was still pending in February 2020.  The clear implication of the affidavits was that the investigation was still ongoing.  The court ordered Urbana to seek additional affidavits which would explain how the release of records would actually interfere with the ongoing investigation.

What the August affidavits from the Illinois State’s Attorneys Appellate Prosecutors failed to mention was that the ISP investigation concluded on March 10^th, was handed over to the ISP prosecutors on March 11^th, and that no additional investigation was ever requested.  This information was revealed in a new affidavit from ISP Sgt. Chad Dumonceaux signed on October 23^rd.

Judge Bohm sounded irritated when he said that neither Simon nor the ISP attorneys had disclosed the fact that the ISP investigation had concluded in March, and he noted that this information was “conspicuously absent from another ISP affidavit” submitted in August by ISP attorney Bruce Kugler.  Bohm said that Kugler’s affidavit was “less than forthright”, and went on to sternly lecture:

“When people swear to things, they promise to tell the truth, the whole truth, and nothing but the truth.”

Matthew Jones of the State Appellate Prosecutors Office refused to submit a supplemental affidavit despite the court’s order, indicating that it was not their policy to comply with such requests.  Bohm noted that this claim was nonsensical since Jones himself had already submitted exactly such an affidavit in August.

Bohm noted that both ISP attorneys are officers of the court, and that being forthright and candid is not only expected, but required under “professional conduct” rules of the court.  Since Simon was in communication with the ISP and the Appellate Prosecutors Office, it is difficult to believe that Simon was not fully aware of the fact that their investigation was long over, and Simon made no attempt to claim that he was unaware of that fact.

Even after Bohm delivered his ruling, and explained each point while citing other supporting court cases, Simon tried to deliver an erroneous argument about the case law.  Bohm immediately corrected Simon, saying that the case law is “crystal clear”.

Merrick Wayne, the attorney for the plaintiff, said he would be seeking court costs, attorney’s fees, and civil penalties from the City of Urbana.  James Simon said that the City was reserving their right to appeal the court’s decision, but that he would have to talk to “the powers that be in the City” to make that determination.

This debacle only adds to the count of Urbana public records failures in 2020 and casts even greater doubt on the already questionable posture of the City legal department headed by James Simon.  After numerous complaints of exorbitant fees and frequent records denials, James Simon gave a lengthy presentation on the City’s FOIA practices at the July 20^th City Council meeting in an attempt to justify the actions of the City legal department.  Shortly after that presentation, a host of determination letters by the Illinois Attorney General indicated that many of the City’s questionable practices were unlawful.  This more recent determination by a judge further underlines the seriousness of the City’s malfunctioning legal department.

-Christopher Hansen, Urbana

UPDATE: The full hearing transcript is now available:

Urbana FOIA Court Hearing Transcript on Case 2020CH56 (Carol Ammons Police Report) 2020-12-09