Evanston City Clerk Sues City Attorney, City Manager Over FOIA

EVANSTON, IL — The municipal officer responsible for fulfilling public records requests in Evanston has filed suit against the city, the city attorney and the city manager. Filed Tuesday in Cook County Circuit Court, the lawsuit claims the city has been violating the Illinois Freedom of Information Act by refusing to turn over body camera footage, claiming the elected city clerk is not a client of the city's law department and not allowing the municipal officer to fulfill his legally mandated record-keeping requirements.

City Clerk Devon Reid's suit asked a judge for a declaration that the state public records law, or FOIA, requires the city to provide his office with copies of records of all body camera footage subject to the act as well as all documents that potentially contain attorney-client communications. He and his attorney, Ed Mullen, argue it does not violate attorney-client privilege for the city to provide him the police videos and unredacted copies of documents. Reid is Evanston's designated FOIA officer under the law, which comes with certain specified responsibilities like issuing and maintaining the city's responses to record requests.

Corporation Counsel Michelle Masoncup, the city's top lawyer, said city staff intend to fight the case. She declined to say whether the law department is of the opinion that the Evanston City Clerk qualifies as a client of the Evanston Law Department, nor whether Reid, as FOIA officer, is statutorily required to maintain copies of public records provided to requesters.

On April 29, Mullen sent a letter to Masoncup laying out Reid's concerns over Evanston's "current non-compliance with FOIA requirements" when it comes to police body camera footage and documents redacted citing attorney-client privilege.

According to the law, FOIA officers are required to "create a file for the retention of the original request, a copy of the response, a record of written communications with the requester and a copy of other communications." Though the Illinois Attorney General's Office, which is tasked with training public officials on how to follow the law, has not previously issued an official opinion on whether "the response" includes the provided records themselves, doing so would allow the public body to keep an accurate record of the response in case the requester files a lawsuit under FOIA or requests a review by the office, an attorney from the office's Public Access Bureau noted.

Mullen said the law meant that the city must provide a copy of body camera footage produced under FOIA "to enable him to comply with his obligation to keep 'a copy of the response,'" according to the letter he sent to Masoncup before filing suit.

"Indeed, this was the practice before Clerk Reid was elected, suggesting that the City's current legal position is based more on issues other City Officers may have with Clerk Reid than applicable law. Moreover, by producing the body camera footage without consulting with the FOIA Officer, you are circumventing the responsibility of the FOIA Officer to issue the response," it said. "The anomalous result of your current policy is that members of the public may obtain the video footage, while the City's Clerk and FOIA Officer is not provided with copies."

Reid said his lawyer's letter, which warned Masoncup that the clerk would have "no choice other than to seek a declaratory judgment and other legal relief" if the city did not change its policy, and the lawsuit that followed, was his last resort.

"Initially I brought this up to members of the Council, to the mayor in particular, a number of times" Reid said. "Then I sent emails to the law department and police chief laying out my case for why we should be complying. I met with then-Chief [of Police Richard] Eddington to discuss the issue and he assured me that it would be solved."

After new Chief Demetrious Cook took over, Reid said he was told by an officer in the records department that the city's lawyers had instructed police not to provide him with any body-worn camera footage. Evanston police have repeatedly released videos from police body cameras directly to requesters, including Patch, bypassing the clerk's office entirely since the department fully implemented its bodycam program last year.

In a May 1 letter responding to Mullen, Masoncup said the Illinois Law Enforcement Body-Worn Camera Act "precludes" the Evanston Police Department from disclosing body camera recordings to third parties. But when asked, she declined to say whether the law department believes police departments are forbidden from releasing such records to FOIA officers.

Masoncup said the dispute over attorney-client privileged records relates to redacted emails between Chief Financial Officer Hitesh Desai and the city's bond counsel at the firm Chapman & Cutler involving legal advice. The emails concern requests for records regarding whether the city properly conducted public hearings on the issuance of $40 million worth of bonds to fund the new Robert Crown Community Center, according to Reid, who said there could be a significant value in informing the public that the city is complying with its legal requirements.

"Maybe this is something where the exemption should be waived because we're discussing the legal process for a public hearing for millions of dollars worth of bonds which will, next year, create a million-dollar debt liability for the city, maybe it's in the public interest for folks to know whether or not we are holding that bond hearing in compliance with the law," Reid said. "But I haven't made the determination whether or not the emails should be released, I've just asked to see the emails to know if it was something proper to release."

The clerk argued that it would not break attorney-client privilege to show him something that had already been shared between the city manager, mayor, city attorney and chief financial officer.

"I am also the client, as an officer of the city," Reid said. "I get using the attorney-client privilege exemption for the public, but I am not a member of the public. I am the city clerk and the FOIA officer."

In her letter denying Reid's lawyer's requests, Masoncup said "any legal expenses and costs associated with your legal representation of City Clerk Devon Reid will not be paid by the City of Evanston."

On May 7, Reid filed suit, asking that a judge make a declaration that the Illinois FOIA law requires the city to provide his office with "all body camera footage subject to FOIA" and "all documents that potentially contain attorney-client communications subject to FOIA to Clerk Reid in unredacted form to issue the response, including making determinations of whether the redaction are proper. Reid's suit also asks a judge to order Evanston to pay his attorney's fees.

A preliminary hearing before Associate Judge Sanjay Tailor, himself a former lawyer at the firm serving as Evanston's bond counsel, is scheduled for June 12 in Chicago.

In response to the suit, Masoncup said the city follows the requirements of FOIA and the Body-Worn Camera Act, but it was not the place of the city's FOIA officer to decide which information should be released and which should be considered exempt as privileged attorney-client communication or under the body camera statute.

"The City believes that the City Clerk cannot be the arbitrator of whether or not an individual has privacy rights with respect to these issues," Masoncup said in a statement.

The number of FOIA requests processed by the Evanston City Clerk's Office has been increasing in recent years. Following the adoption of NextRequest records request management software in 2015, the office processed 769 requests in 2016, 924 requests in 2017 — the year in which Reid took office — and 1,394 requests in 2018. The city is on track to handle a similar number of requests in 2019.

Last year, the law department bypassed the clerk's office on 32 percent of the requests received, handling 446 requests without providing a copy to the FOIA officer, according to a response to a public records request by the website Evanston Leads. Its review of cases where city attorneys asserted attorney-client privilege found, in all cases examined, that law department staff failed FOIA's requirement to provide evidence for the assertions or properly disclose the party responsible for the denial.

In late 2017, the Evanston City Council debated reducing the role of the city clerk by naming a new FOIA officer in response to concerns over private information potentially being publicly available on the online records management system. Aldermen amended its policy to only provide responses directly to requesters, but they decided to leave Reid's office as the sole official FOIA officer after members of the public urged them to keep the position responsible for releasing public records an elected one.

Earlier:

• Evanston Aldermen Vote To Take FOIA System Offline, Reconsider Clerk's Role
• Emails, Police Report Detail Evanston City Hall 'Witch Hunt'
• Evanston City Council Approves New FOIA Policy