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Headline:

City Spends Millions Defending Secrecy Practices

Deck:

A BGA investigation shows Chicago leaders paid millions in legal fees to withhold public records, thwarting a decade-old state reform measure to give citizens more power to shake loose government documents.

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Chicago taxpayers paid out more than $2.4 million to lawyers for citizens, activists and journalists who sued the city for illegally withholding public records, according to a Better Government Association review of more than 100 lawsuits filed against the city.

The payouts — which accrued over the past decade since state lawmakers passed government transparency reforms amid the furor sparked by the arrest of Gov. Rod Blagojevich — raise questions about how effective those reforms actually were.

Among them was a provision to force government agencies throughout Illinois to pay the legal bills of the other side after losing public records cases. This “fee shifting” law was supposed to promote government accountability and put an end to frivolous denials.

The city’s legal payouts exploded in both numbers and dollar amounts in 2016 during then-Mayor Rahm Emanuel’s term, but have continued to rise since Mayor Lori Lightfoot took office in 2019. Both administrations denied public access to government documents even after conceding in case after case that similar records should have been released — including videos of police shootings, the BGA found.

Records show the city repeatedly denied access to police shooting videos despite losing 11 lawsuits in which CPD videos were ultimately made public. In fact, of the city’s 119 payouts since 2010, about 90 percent stemmed from denials by the Chicago Police Department.

The city’s refusal to release the police videos — even after repeatedly losing similar cases — meant city taxpayers got the bill for the legal costs of both sides. The bills for the plaintiffs’ lawyers totaled more than $320,000 since 2015 for police video lawsuits alone.

Lightfoot, her administration’s lawyers and police officials all declined to be interviewed for this story. In a brief statement, her lawyers said all public records denials under the Illinois Freedom of Information Act (FOIA) are “based upon a good faith basis that release of certain records would contravene with the law.”

The city also said it is working to beef up its staff of FOIA officers to deal with the increasing demand for public access to city records.

Critics argue the continued payouts show the city is not learning from the reforms following the indictment of Blagojevich, who became the second Illinois governor in a row to be sent to federal prison.

“FOIA collides with a culture in Chicago, particularly in the police department,” said attorney Thomas Needham, who recently filed a public records case against the city. The Chicago police “will usually cover up any scandal or anything that's embarrassing,” said Needham, who once served as the police department’s general counsel and chief of staff.

John Rappaport, a University of Chicago law professor who studies police procedure and misconduct, said one explanation for patterns of police public records denials is a lack of clear precedents from higher courts. He also pointed to an insular police culture.

“There’s a concern that the information that’s disclosed is going to be abused, misunderstood and taken out of context by people who don’t understand the difficulty of policing. There may also be the desire — I think ultimately misguided or at least short-sighted — to protect the reputation of the department,” Rappaport added.

“When you keep everything in the dark, maybe it saves a little bit of money or some reputational capital in the short run, but in the longer run, you’re just letting the bad stuff grow and spread,” he said.

Emanuel’s administration paid out nearly $1.7 million in attorneys’ fees on public records lawsuits before he left office in 2019. Since Lightfoot took office that year, the city has settled 38 FOIA lawsuits, paying out $717,252 in attorneys’ fees and costs, nearly a third of the total since 2016, the BGA review found. All but four of those cases involved police records.

Among the attorneys’ fees and costs billed to taxpayers since the fee-shifting law took effect in 2010:

  • $321,098 in 11 lawsuits after police wrongfully denied requests for video footage of police shootings and fraught encounters with citizens.
  • $125,430 to settle 12 lawsuits stemming from requests police denied for investigative files on police misconduct complaints.
  • $111,500 in six lawsuits after the city denied records about police surveillance programs designed to track criminal and terrorist organizations.

In 21 of these 29 cases, the lawsuits alleged the police department denied records by simply failing to respond to written requests.

The plaintiffs in these cases are often the media, including the Better Government Association. They also include relatives of citizens injured and killed in confrontations with police officers, activists and attorneys preparing civil lawsuits on behalf of criminal defendants.

The police department accounted for more than two-thirds of the overall payouts — although sometimes it was a co-defendant with other oversight agencies, including the mayor’s office.

To determine whether similar patterns existed in other government departments, the BGA also examined public records lawsuits filed against nine other agencies from the Chicago Housing Authority to the governor’s office.

None demonstrated the Chicago Police Department’s pattern of repeated denials for similar records.

Until the fee-shifting provisions were adopted in 2010, Illinoisians filed records lawsuits far less often, deterred by state law forcing them to hire attorneys at their own expense. In addition to fee shifting, state lawmakers formed the office of the Public Access Counselor (PAC) under the Illinois Attorney General. Citizens denied public records requests can appeal denials to the PAC.

The BGA review suggests — at least when it comes to Chicago police records — the 2010 reforms aren’t working.

Lawsuits for Video Footage

One chain of police denials included the now-infamous video from the Oct. 20, 2014 police shooting of 17-year-old Laquan McDonald. The officer who shot McDonald 16 times that night, Jason Van Dyke, was initially cleared after he and other officers at the scene mischaracterized McDonald’s actions as aggressive. The shooting prompted citywide protests, but the Emanuel administration refused to release the dash-cam police video saying it was part of ongoing investigations by federal and police oversight agencies.

After independent journalist Brandon Smith sued over the denial, Cook County Circuit Court Judge Franklin Valderrama in 2015 ordered the footage released, ruling an agency could only withhold its records in cases where it was conducting an ongoing investigation.

The city was forced to pay $97,500 to Smith’s attorneys under the 2010 fee-shifting law. The release of the video prompted an outcry from protestors, and the following day Van Dyke was charged with murder and 16 counts of aggravated battery.

That decision came early in the series of 11 lawsuits where the city paid plaintiffs’ attorneys $321,098 after police denied similar requests for police body-cam and video footage, sometimes citing improper exemptions, including ongoing investigations by other agencies, the BGA found.

On July 20, 2015 — four months before the court ruling in the McDonald shooting — Heriberto Godinez died in police custody after allegedly burglarizing a garage. Months later, in December of that year, attorneys for the Godinez family requested video and audio footage, which the CPD denied citing ongoing investigations by the Independent Police Review Authority (IPRA).

“Isn’t this objection you are offering me the same objection that was tried and rejected by Judge [Valderrama]?” Godinez family attorney Torreya Hamilton wrote in a March 2016 email to the city’s law department.

“Why would you be doing this same thing all over again?” she wrote. “Someone in the government needs to stand up and do the right thing on these cases instead of repeatedly spending the taxpayers’ money to try to hide evidence when it reflects poorly on a police officer’s conduct.”

Hamilton’s email exchanges with the city attorneys were filed as court exhibits in her lawsuit on behalf of the Godinez family. In a settlement, the city released the records and paid the Hamilton Law Office $19,384 in attorneys’ fees and related costs.

 

“There is a culture in our police department in Chicago that teaches and fosters this idea that police officers do not have to follow the law the way that the rest of us do,” said Hamilton, a former city attorney who previously defended the police department. “And so, does it surprise me that the police department has systemic problems with following the law with respect to FOIA? Not one bit.”

A 2019 opinion of the First Appellate District Court based in Chicago, Kelly v. Village of Kenilworth, did give police departments some flexibility to withhold records that would interfere with another law enforcement agency’s ongoing investigation, but said police still must show how each specific record would do so. And even after Kelly, the city continued to pay legal bills for similar police denials, the BGA found.

Within months of the Kelly decision, the family of 16-year-old Dnigma Howard filed a request for the video of her violent encounter with a school police officer earlier that year. The officer allegedly pushed the Marshall High School student down a flight of stairs as she thrashed and resisted before he allegedly punched her and shocked her with a Taser. The CPD refused to release the video citing an ongoing investigation by agencies including the Civilian Office of Police Accountability (COPA).

The Howard family was represented by attorney Matt Topic, whose firm Loevy & Loevy serves as general counsel for the BGA and has filed numerous open records lawsuits on its behalf. Topic filed suit in the Howard case, and the city released the video and paid his attorneys’ fees — $5,000. 

In the Howard public records lawsuit and most others examined by the BGA, city attorneys fought in court until just before a court ruling appeared imminent — then reversed course and settled the case before a judge could rule — releasing the records and paying the requesters’ attorneys’ fees. Those cases were settled before a judge could rule and set precedent for future requests.

In each case, however, lawsuits take months — sometimes years —- to shake loose records, far longer than the two weeks public agencies are given to produce records under the law.

While the fee-shifting provision does little to speed the release of public records, it has fostered a small number of lawyers who specialize in filing lawsuits for public records.

Topic began a separate practice at Loevy & Loevy solely dedicated to suing for public records. The Loevy firm accounted for at least 64% of all cases and 48% of all payouts against the city, earning $1.1 million since 2015, records show. Topic has earned $585,995 in recoveries from cases filed statewide on behalf of the BGA.

Topic said the city spends a comparable or even greater amount on its own attorneys and outside counsel to fight the release of public records. He provided invoices from one lawsuit showing the city paid $120,332 in legal expenses to outside counsel for defending a public records denial his firm ultimately won. By contrast, the city paid the Loevy firm fees of $10,500 in that case, records show. 

Topic and other public access attorneys say the financial penalties for the dozens of public records lawsuits argued over similar types of documents are a tiny percentage of what the police department pays in overall police litigation costs. The city paid $642 million in police misconduct settlements and outside legal costs between 2004 and 2015, according to a 2016 BGA report, and those costs subsequently continued, according to The Chicago Reporter.

‘Complaint Register’ files hidden

All of the 11 public records lawsuits over police misconduct files followed the case known as Kalven v. City of Chicago, a 2014 Illinois First District Appellate case in which independent journalist Jamie Kalven requested records on police officers who accumulated numerous misconduct allegations.

These dossiers — known within the police department as “Complaint Register” files —  contain evidence, photos and statements collected during investigations by police oversight agencies. In Kalven, the court ruled that CR files are generally subject to release under public records laws: police can redact sections but not the file in full.

One of the denials was to attorney Needham, who sent police a public records request in August 2019 on behalf of Dezra Jackson. Needham sought records pertaining to her ex-husband, a police officer. At the time, Needham was preparing a federal lawsuit alleging police illegally arrested her in her home in front of her daughter. Her ex-husband and the City have denied any wrongdoing.

With no response by the statutory deadline, which constitutes a denial, Needham filed a FOIA lawsuit against the police.

“I don’t think this request is very complicated or controversial so hopefully I can get the documents soon,” Needham said in correspondence with city lawyers. “Often it feels like the CPD just blows these FOIA requests off. I’ll wait to hear from you.”

He prevailed, acquiring records and $4,864 in attorneys’ fees. The civil rights lawsuit is ongoing.

Topic and other lawyers who file these cases say the fee-shifting law prompted a new flood of successful public records lawsuits, but it has done little to train public agencies to release records without a fight.

“I think they [the CPD] just have a culture of secrecy that doesn’t value transparency and in which no one will ever get in trouble for failing to produce records,” said Topic. “If the result of releasing records is potential embarrassment to the police department, there isn’t any penalty great enough, probably, to dissuade them from trying to withhold.”

Lawsuits for Surveillance Program Records

In six lawsuits totaling $111,500 in attorneys’ fees and related costs, plaintiffs requested reports, policies and information about what critics suggest are invasive police surveillance programs.

Those six lawsuits pertain to the department’s Crime Prevention and Information Center (CPIC), which says it analyzes online information about hate crimes, terrorist activity and a range of public safety threats. 

On July 3, 2018, Jake Ader, a contributor to Lucy Parsons Labs, a Chicago-based digital transparency and civil rights organization, sent police a request for CPIC communications about several protest groups.

More than a year later, after Topic sued for the documents, the city complied and paid  $18,500 in attorneys’ fees and related costs.

Alexander Shur is a graduate student at Northwestern Universitys Medill School of Journalism, Media, Integrated Marketing Communications. David Jackson is a BGA senior investigative reporter.

This story was produced by the Better Government Association, a nonprofit news organization based in Chicago.

Republishable images:

AttachmentDownloadCaptionCutline
Image icon Download 20190911 - Lightfoot- _DSC0126.jpg (1.7 MB)Mayor Lori Lightfoot’s administration has continued the city of Chicago’s practice of withholding government records that are eventually made public after the city is sued.(Madison Hopkins/BGA)
Image icon Download Hamilton1.jpg (835.14 KB) Torreya Hamilton of the Hamilton Law Office is among a small number of lawyers who have won public records lawsuits against the city of Chicago.(Alexander Shur/For the BGA)

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Record denial patterns

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