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Wednesday, July 3, 2019 12:22 am

King George and public records

Opening up government, one lawsuit at a time

 It being Independence Day, let’s celebrate government that’s supposed to be of the people and by the people, even in Illinois.

When founding fathers created America nearly 250 years ago, the deed was done in secrecy. Under a 1775 agreement signed by every member of Congress, anyone who blabbed about what Congress did or contemplated, absent permission, was subject to expulsion and “deemed an enemy to the liberties of America and liable to be treated as such.” I suspect this would qualify as the good old days in certain Chicago wards and state government offices.

We’ve evolved, at least in theory. The modern patriot trusts but verifies, and so we have all kinds of laws all across the land that are supposed to guarantee our right to see government documents and attend public proceedings, regardless of whether politicians like it. When an elected official or bureaucrat tells us to shove it when we want records, we can shove back in court. And so our lawyer here at Illinois Times this holiday has money for sparklers, courtesy of taxpayers, our friends at Central Management Services and the state Freedom of Information Act.

I’d asked to see records memorializing the transfer of surplus federal property – everything from Humvees to saxophones – to towns, cities and other units of local government. The transfer paperwork flows through CMS, which asserted that the records couldn’t be disclosed on…privacy grounds. I had expected some excuse, but not that one, given the records in question concerned public property that went from one public agency to another public agency via a public agency. CMS argued that it couldn’t redact signatures of public officials from transfer forms and that handwriting is a private matter. The forms include destination addresses, and CMS asserted that some small-potatoes outfits – think drainage districts -- that get plasma cutters and the like from the feds are domiciled in homes of public officials, and the law says that home addresses aren’t public records, even if addresses are headquarters of record for a public agency. Sangamon County Circuit Court Judge Rudolph Braud saw through the silliness and last month awarded us more than $9,700 in legal fees. Not a huge amount, but still a bill that never should have been.

Last week, I listened to a lawyer tell Sangamon County Circuit Court Judge Raylene Grischow that personnel files held by the secretary of state aren’t public records. We sued nearly two years after asking for help from former Attorney General Lisa Madigan, who’s supposed to enforce the law -- at one point, an AG spokeswoman told me that Secretary of State Jesse White had come up with a point that required deep analysis. White contends that an administrative rule promulgated by his office trumps the Freedom of Information Act, which says personnel files are public records.

I’m biased, but that’s obvious horseshit. The judge sounded skeptical. “What’s so sacred about secretary of state employees?” Grischow asked from the bench. “Why do they get to make their own rules to protect their people?”

“There’s an inconsistency,” assistant attorney general Samantha Costello acknowledged when the judge pointed out that White’s rules don’t match the law. Not that it matters, but I’m seeking the personnel file of Candace Wanzo, whom White hired after she embezzled more than $230,000 from Southern Illinois University. Wanzo was put on administrative leave in 2017 for reasons that remain mysterious and collected paychecks for more than a year before leaving state employ.

While the state has money from recent tax increases, it is disappointing that the public is paying for White’s lawyer and maybe ours, if Grischow decides that state law is, in fact, the controlling factor here, as opposed to a rule invented by the secretary of state. Attorney General Kwame Raoul should have told White to either turn over the records or find a different lawyer. As a candidate, Raoul promised to improve transparency by hiring more attorneys tasked with refereeing FOIA disputes. Since Raoul was sworn in, his office has issued binding opinions in just two FOIA cases, neither one complicated. One involved the Village of Ringwood, which didn’t respond to either a records request or the attorney general when the requester complained. The AG decreed the village was wrong.

Secrecy goes beyond state government. Courts are supposed to be our most open institutions, yet anyone who records a court proceeding absent permission is subject to arrest. Sangamon County courts sometimes operate in de facto privacy by holding hearings with no public notice. It happened last month, when prosecutors, unable to produce a complaining witness, won a delay in the trial of a former Springfield cop accused of illegally battering a man. In another high-profile case, a former University of Illinois Springfield recruiter last year pleaded guilty to raping a student in a by-invitation-only proceeding – cops and a few UIS folks were alerted, but a judge, since retired, took the plea without the event appearing on the court docket until after the fact.

Lawyers and judges tell me that evolving events sometimes demand impromptu hearings. If so, there is an easy remedy. When circumstances require unscheduled proceedings, turn on a recorder so that a record, free of charge, will be available for folks who couldn’t be there because they didn’t know. It’s bad enough that folks can’t record in open court when they’re present; it’s worse when they never have a chance to be there.

We’ve come a long way since 1775. Happy Fourth of July.   

Contact Bruce Rushton at brushton@illinoistimes.com.

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