The City of Urbana has been restricting access to public records by charging exorbitant fees to residents who make Freedom of Information Act (FOIA) requests.
Much of the effort to barricade the public from access to records has been in regards to police misconduct. This became a contemptuous issue after the violent arrest of Urbana resident Aleyah Lewis arrest caused the residents of Urbana to push harder for transparency from their government.
This latest fee-charging scheme was orchestrated by recently appointed FOIA Officer Curt Borman. Borman, a retired police officer who holds the position of Assistant City Attorney was appointed by Mayor Marlin to be Urbana’s FOIA Officer on June 8th, 2020.
Borman’s appointment came after the resignation of City Clerk and FOIA Officer Charlie Smyth. During his tenure as FOIA Officer, Smyth adopted a posture of denial and impropriety to public records requests (article here). Residents alleged that Smyth improperly assigned recurrent requester status to requesters, ignored FOIA requests, intentionally omitted documents, and even ignored FOIA requests. When Smyth’s corrupt actions were brought to light by residents, he abruptly resigned from his position of City Clerk and FOIA Officer citing the occasional stomach pain.
Under the reign of Curt Borman, residents were charged thousands of dollars in FOIA fees to obtain public records. Requests for fee waivers were denied and records were denied if the requester could not pay the fees. The City started charging $100 for each Urbana Police Department (UPD) dashcam video, racking up hundreds of dollars in fees for a set of videos from a single police incident. Data charges were also applied to electronic documents such as emails, policies, and police reports.
One requester was charged $702.66 for UPD dashcam video from the arrests of Quintin Brown and Wayne Colson in 2018. Brown and Colson were imprisoned for nearly a year before the case was dismissed due to lack of evidence. There is currently a lawsuit accusing UPD officers of fabricating eyewitness identification to implicate Brown and Colson.
In addition, Borman insisted that every electronic request be delivered via flash drive, even for documents that could easily be delivered via email, which was what the City had been doing in the past. Each flash drive cost $7.97, creating yet another hurdle to a resident requesting records. The City is also charging postage fees for mailing the flash drives.
When residents brought up FOIA obstructions week after week at City Council meetings, Mayor Marlin responded by sending out a memo (pdf of memo here) on July 10th, 2020 to City Council members. This memo was based on City Attorney James Simon’s interpretation of the Illinois FOIA statute. According to Simon’s interpretation, since the FOIA statute does not prescribe recurrent requester fees “the City can charge whatever it deems reasonable.” He then goes on to say that the City has chosen to apply voluminous request data charges to requests by recurrent requesters even though these requests were not deemed voluminous.
In her memo, Marlin justifies applying voluminous request data charges to two recurrent requesters as a means to recoup the costs of handling FOIA requests.
She says “The City has statutory authority to charge and has been charging voluminous requests based on the number of megabytes downloaded on the electronic storage media used to produce the records to the requester. Starting around April 2020, for the first time in Urbana, two individuals qualified as recurrent requesters. FOIA permits the City to charge fees to recurrent requesters.”
Marlin’s memo was followed-up with a FOIA presentation (pdf of presentation here) by City Administrator Carol Mitten, Curt Borman, and James Simon during the City Council meeting on July 20th, 2020. During this meeting, James Simon once again said that it the City has statutory authority to charge the data fees to recurrent requesters following the fee schedule for voluminous requests. He then added that only two persons have been designated as recurrent requesters and subjected to these exorbitant fees.
Interestingly, Mayor Marlin’s and James Simon’s claim in the memo and presentation that only two persons have been designated as recurrent requesters is false. CU-Underground has received reports from more than two requesters that have been designated as recurrent requesters and have had similar fees applied their requests.