March 22, 2012 01:11 PM
Better Government Association Sues Pace, Alleges Violations of Open Records Law
Nonprofit watchdog accuses suburban bus agency of stonewalling on safety-related
By Better Government Association
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Mary Frances O’Connor (312) 821-9026
Robert Herguth (312) 821-9030
CHICAGO—The wheels on the bus may go ‘round and ‘round, but the Better Government Association is tired of going "around and around" with Pace when it comes to reasonable requests for public documents.
As a result, the BGA filed a lawsuit today against the suburban bus agency, alleging it violated the Illinois Freedom of Information Act (FOIA) in refusing to turn over documents related to bus accidents, and alcohol and drug testing of bus drivers.
"Pace is a taxpayer-supported agency," said BGA President and CEO Andy Shaw. "It shows a remarkable degree of arrogance to refuse to release documents that are so clearly in the public realm – and that other agencies have, at times, turned over without even a formal FOIA request."
"The fact that Pace won’t provide this information should be worrisome to riders and other members of the public," Shaw added. "It makes you wonder: what is Pace hiding?"
FOIA provides that documents in the possession of public agencies are accessible to members of the public, unless those documents fit certain narrow exemptions.
Invoking FOIA, the BGA asked Pace via email on Feb. 14, 2012, to provide copies of "any and all police reports and accident reports relating to vehicle accidents that involved a Pace vehicle in calendar year 2010 and calendar year 2011."
As part of the same request, the BGA asked for copies of documents "sufficient to show how many Pace employees in safety-sensitive positions were tested for drugs and alcohol in calendar year 2010 and calendar year 2011, and how many of those employees tested positive for drugs and alcohol."
Pace’s general counsel refused the BGA’s request for accident-related documents, claiming they don’t have to be released because they relate to "self-insurance claims, loss or risk management information" – one of the allowable exemptions under state law, if properly cited. Further, Pace claimed police reports "are the purview of the individual Police Departments."
However, in the lawsuit filed today, the BGA argues the "mere fact that PACE may have submitted insurance claims related to accidents does not make the documents created in connection with accident investigations exempt."
Also, the lawsuit notes, "FOIA does not permit a public body to refuse to produce documents in its possession on the basis that some other public body also has those same documents."
As for drug and alcohol testing material, Pace released documents for 2010 but claimed no such documents exist for 2011. However, the lawsuit contends: "Upon information and belief, PACE has records that show the results of drug and alcohol testing of Pace employees in safety-sensitive positions in 2011."
Meanwhile, FOIA provides that public documents must be turned over to requesters within five business days – or 10 business days under "limited circumstances."
Pace took 10 days to respond to the BGA’s request, but the lawsuit alleges the agency had no right to the extra time. "PACE routinely seeks extensions . . . as a matter of routine practice, whether or not such extensions are justified," the suit contends.
The BGA suit not only seeks the documents requested, but also fines and attorney fees. (The lawsuit was filed pro bono in Cook County Circuit Court by the Chicago-based law firm Kirkland & Ellis LLP, which has represented the BGA in other FOIA lawsuits against public agencies such as the Chicago Police Department.)
It’s worth noting that Pace has been one of the most difficult public agencies to deal with when it comes to FOIA by refusing to correspond via email, regularly invoking extensions and, in the BGA’s opinion, needlessly creating other hurdles to block the free flow of information.
"It’s time for Pace’s board of directors – consisting mostly of current and former mayors in the suburbs – to do the right thing and commit to greater transparency," Shaw said.