Two days after losing a Freedom of Information Act (FOIA) lawsuit, Urbana Mayor Diane Marlin sent out a press release in an attempt to cast blame on a third party. The FOIA lawsuit sought records related to the alleged purse theft by State Representative Carol Ammons on January 7th, 2020. Though the case was handed over to the Illinois State Police (ISP) on January 10th, Urbana still possessed their own investigation records, which are subject to FOIA.
The lawsuit was filed on March 10th by Kirk Allen of the Edgar County Watchdogs after his January request was denied by the Urbana Police Department (UPD). The FOIA exemptions cited to justify the denial were not required in any way – UPD could have easily released the records, and there would have been no repercussions for the City.
Furthermore, the FOIA exemptions cited by Urbana were not lawful. Judge Bohm made this clear when he issued his summary judgment on December 9th, indicating that the FOIA violation was so clear-cut that the case need not go to trial. Urbana could have supplied the requested records anytime in the nine month period between the filing of the lawsuit and the judge’s ruling, but City Attorney James Simon wished to argue the case.
Since Judge Bohm immediately rejected the other two FOIA exemptions (concerning personal and private information) cited by the City, the crux of the FOIA lawsuit was the issue of Urbana’s claim that releasing the records would interfere with the purse theft investigation. The case law on this exemption is crystal clear: it is not enough that an investigation is pending or ongoing, the public body must be able to articulate exactly how the release of the records would interfere with the investigation.
In her December 11th press release, Marlin wrote:
“The City of Urbana repeatedly requested updates from the Illinois State’s Attorneys Appellate Prosecutor on the status of the investigation over the intervening months. The City was repeatedly told the investigation was ongoing.”
This does not seem to be the case. On October 16th, Judge Bohm directly asked Simon if any communications proving this exact claim were in the record, and Simon said, “no”. At the same hearing, when Simon commented on his alleged communications with the ISP and Appellate Prosecutor, he avoided uttering the phrase “ongoing investigation” and instead argued that the ISP “said they were still dealing with it”. Simon’s crafty phrasing “still dealing with it” could mean anything, and it certainly looks as though Simon knew the ISP’s investigation was long over, but didn’t want to admit it to the judge.
Having noted all of this, it still doesn’t matter if the investigation was ongoing or not, or when the investigation was concluded. What matters is if Urbana could articulate why releasing the records would interfere with such an investigation. The simple truth is that there existed no point in time when Urbana could offer any such explanation, and that is why their denial of the records was unlawful. Ignorance, shrugging your shoulders, and guessing, are not lawful FOIA exemptions.
Marlin blamed the Illinois State’s Attorneys Appellate Prosecutor for Urbana’s loss in court, but the blame sits squarely on the Urbana Police Department and the City legal department. The real question is, has the City of Urbana learned anything from this case? Given that James Simon and Mayor Marlin appear to be considering appealing Judge Bohm’s ruling in this case, the answer appears to be “no”.
-Christopher Hansen, Urbana
Mayor Diane Marlin’s December 11th Press Release on the Carol Ammons FOIA lawsuit (click for full 2-page pdf):
Good to see the ECW’s named in the press release.
In the same paragraph, here’s a shameless steal from Mr. Kirk Allen:
‘Who says and with what proof?’