Urbana Loses FOIA Lawsuit, Judge Rules Improper Denial of Public Records

At a FOIA lawsuit hearing on December 9^th, 2020, Champaign County Judge Jason Bohm ruled that Urbana had incorrectly withheld public records and documents related to the alleged retail theft by Illinois State Representative and Chair of Champaign County Democratic Party Carol Ammons.

On January 10th, 2020, Urbana Police Department was contacted regarding an alleged theft by Ammons at the Carle Auxiliary Resale Boutique, a charity resale store in Urbana. The incident happened on January 7^th, where Ammons allegedly left the resale boutique without paying for a purse. The investigation was then handed over to the Illinois State Police (article here).

Citing a conflict of interest, Champaign County State’s Attorney Julia Rietz directed Court Judge Tom Difanis to appoint a special prosecutor to determine if Ammons should be prosecuted.

Following the incident, multiple Freedom of Information Act (FOIA) requests were made for documents and records pertaining to the incident. The City of Urbana summarily denied these requests, invoking the following exemptions:

1. 5ILCS140/7(1)(b) Private information, unless disclosure is required by another provision of the Act, a State or federal law or a court order
2. 5ILCS140/7(1)(c) Personal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, unless the disclosure is consented to in writing by the individual subjects of the information
3. 5ILCS140/7(1)(d)(i) Disclosure would interfere with pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement or correctional agency that is the recipient of the request

After being denied the records under FOIA, the Edgar County Watchdogs filed a lawsuit against the City of Urbana and Urbana Police Department (UPD) on March 6^th challenging the FOIA exemptions.

City Attorney, James Simon represented the defendants, arguing that Ammon’s right to privacy outweighs any legitimate public interest even though Ammons is an elected public official. Simon also put the blame on the Illinois State Police and Illinois State’s Attorneys Appellate Prosecutor, saying that the two agencies advised Urbana not to release the records due to their ongoing investigations. Simon however denied knowing if there was still any ongoing investigation since the incident happened 10 months prior.

At the third hearing on December 9^th, Judge Bohm ruled that the City of Urbana made improper FOIA denials for each of the three exemptions. According to Bohm, the first exemption could be satisfied by redaction of private information and was not grounds for a full denial of the FOIA request.

After reviewing the requested records, which consisted of a police report and security camera footage, Judge Bohm struck down the second exemption, saying that there was nothing in the records that would be considered an unwarranted invasion of personal privacy.

Judge Bohm also ruled that the City made an improper denial based on the third exemption as it is not enough to state that there was an on-going investigation but there needed to be an explanation of how disclosure of the records would have interfered with the investigation.

While delivering his judgement, Judge Bohm chastised Illinois State Police (ISP) Attorney and FOIA Officer Bruce Kugler and State Appellate Prosecutor Attorney Matthew Jones for their unprofessional behavior as officers of the Court.

Kugler had submitted an affidavit to the court in August which failed to mention that ISP’s investigation had concluded on March 10^th. This information was only brought to light from another affidavit submitted by ISP Sergeant Chad Dumonceaux on October 23^rd. According to Judge Bohm, this information was “conspicuously absent” from Kugler’s affidavit.

“Telling the whole truth means you don’t leave material information out,” said Bohm.

State Appellate Prosecutor Attorney Matthew Jones refused to provide an affidavit regarding the status of the case in October. Jones stated that it was not the policy of the agency to provide affidavits. According to Bohm, this did not make sense since Jones himself had submitted a similar affidavit in August.

Judge Bohm granted the plaintiff’s motion for summary judgement, saying that it was crystal clear that Urbana had improperly denied the FOIA records. Bohm ordered the City to hand over the requested records by the end of the week.

The plaintiffs, represented by Merrick Wayne will seek attorney’s fees from the City.

Meanwhile, nearly 10 months after the incident, Illinois State’s Attorneys Appellate Prosecutor Director Patrick Delfino announced that Ammons will not be charged with a crime due to “insufficient evidence”.

Following Judge Bohm’s ruling in favor of the plaintiffs, Urbana Mayor Diane Wolfe Marlin was quick to release a press statement. Marlin blamed the Illinois State’s Attorneys Appellate Prosecutor for failing to provide timely and accurate information to the City of Urbana regarding the completion of the investigation on March 10th.

However, Marlin fails to mention that Urbana denied the FOIA requests in February even though at that time, the City did not have the information needed to invoke the exemptions cited. Also, it is clear that Urbana’s FOIA Officer Curt Borman had no reason fully deny the FOIA request based on the exemption for private information (5ILCS140/7(1)(b)). There was also no reason for withholding UPD’s police report based on the exemption for personal information as police reports are routinely released through the FOIA process.

The withholding of public records by UPD FOIA Officer Anthony Weck, City of Urbana FOIA Officer Curt Borman, and City Attorney James Simon is not limited to this incident. Urbana has a history of wrongfully withholding public records especially those concerning the affairs of the police department. With the spotlight on police misconduct nationwide, residents of Urbana have been pushing harder for transparency from their local government. It is not surprising that Mayor Marlin is so quick to shirk responsibility and blame other agencies in light of the criticism the City is already facing from the public (article here).