Experts and attorneys said the mounting payouts in Freedom of Information Act cases raise concerns about Mayor Rahm Emanuel's pledge to run "the most open, accountable and transparent government that the city of Chicago has ever seen." They said the increase may be attributable to a broader awareness of the public's right to records spurred by high-profile cases such as the Laquan McDonald shooting.
The Emanuel administration, which still faces 54 lawsuits alleging open records violations, says it has added resources to provide public information more efficiently.
But critics, such as Torreya Hamilton, a former prosecutor who runs her own civil rights firm and has sued the city alleging FOIA violations, question the city's commitment.
"The taxpayers of the city of Chicago are paying for the city to break the law," Hamilton said.
Jeffrey M. Shaman, a DePaul University professor who teaches constitutional law and the First Amendment, said the city's spike in lawsuits and payments "makes one wonder if the city is willing to comply in good faith with the requirements of FOIA."
The $670,122 total is spread out over 27 cases under FOIA, the state law providing access to government records for the public, that were brought by taxpayers, advocacy groups and media organizations, including the Chicago Tribune. FOIA allows some plaintiffs who sue for records to recover money for lawyers' fees and costs.
In a Law Department statement, the city said it "works diligently to comply with the Freedom of Information Act and responds to thousands of public information requests each year, with only a small percentage of requests disputed."
"However, there is always room for improvement, and during the past year, the city has dedicated additional resources and provided employees with additional training to ensure compliance and provide transparency to the public," the statement said. "It is not acceptable for any city department to ignore or unnecessarily delay a response to a request, nor is it acceptable for a department to improperly apply exemptions."
The city's statement reiterated Emanuel's transparency pledges and touted the administration's creation of a data portal and a written policy "that guarantees the public's timely access to video and audio recordings" from police-involved incidents.
Asked how the city justifies the amount paid out over open records lawsuits, the Law Department said the most common reason it's been sued are "claims of incomplete record searches and incorrectly applied exemptions."
"In these cases, the city works to resolve these cases by providing evidence that searches were reasonable and the exemptions were correctly applied, or by providing additional documents," the statement said. "However, the city has an obligation to defend these suits and ensure that the privacy protections afforded by the FOIA statute are protected."
Records disputes
Nineteen of the 27 cases with payouts in 2016 involve the Chicago Police Department. Others allege public information violations by the mayor's office, Animal Care and Control, the Office of Emergency Management and Communications, the Department of Finance, the Independent Police Review Authority and the Department of Innovation and Technology.Some cases allege the city failed to answer FOIA requests at all, but the most costly lawsuits involved larger controversies.
The most expensive open records case in 2016 was journalist Brandon Smith's lawsuit against the city over video showing Laquan McDonald being shot 16 times by police Officer Jason Van Dyke.
Chicago officials fought to withhold the video, arguing it would interfere with investigations into the shooting. A judge ordered its release, and the city paid $97,500 in fees and costs, records show.
Emanuel recently acknowledged using personal email accounts to conduct official business and the city agreed to pay $96,275 to settle a Better Government Association lawsuit over an FOIA request for Emanuel's email. The Tribune has a separate, ongoing FOIA lawsuit involving Emanuel's emails about public business conducted on personal devices.
Two other Tribune lawsuits against the city were resolved in the news organization's favor in 2016. One involved emails sent or received by former Chicago police Superintendent Garry McCarthy, and the city paid $46,000 in attorneys fees and costs. The other sought city communications related to SUPES Academy and its insider deal that led to former Chicago Public Schools chief Barbara Byrd-Bennett's wire fraud conviction. The city paid the Tribune $95,000 in that records case.
The Tribune sued the Chicago Police Department twice in December, alleging the city failed to provide records as required under FOIA.
"We are disappointed that we continually need to resort to litigation to get access to documents the law requires be made public as a matter of course," Karen Flax, the Tribune's vice president for legal, said in a statement. "The uptick in lawsuits reflects the city's disregard for the importance of the open records law and the fact that the city is understaffed in this area. It is pay now or pay later: If the city would produce the records to which the public is entitled in the first place, we would not need to file lawsuits and incur legal fees which the city then needs to cover."
This summer, a Cook County judge ordered the city to pay $77,697 to the Animal Legal Defense Fund after the organization sued for records related to animal treatment by Animal Care and Control. That lawsuit stretched on for more than two years.
Anthony Eliseuson, an attorney with Dentons, a downtown law firm that also represents the Tribune, said the animal defense fund did not want to sue but couldn't work the dispute out with agency leaders.
"We felt this should've been resolved without a lawsuit," Eliseuson said. "That's ultimately why we sought fees."
Other FOIA lawsuits in which the city paid plaintiffs involved issues such as automatic license plate readers, missed court dates by police officers and the case of Dante Servin, the Chicago police officer who fatally shot Rekia Boyd in 2012 but was acquitted by a Cook County judge who said prosecutors brought the wrong charge.
Even after the McDonald ruling, Hamilton said the city failed to release video from a case involving Heriberto Godinez's July 2015 death in police custody. After the city denied an FOIA request, Hamilton sued on behalf of Janet Godinez, Heriberto's sister.
The city finally released the video in April and paid Hamilton's firm $19,384 in fees and costs, records show.
Hamilton said the city's handling of that case was "absolutely ridiculous from beginning to end" and added there appears to be "a disconnect" between what the mayor says about transparency and what happens day to day.
"I hope some of the statements the mayor's making come true, but I haven't seen it yet," Hamilton said.
'A bit better'
In the eight years prior to 2016, the city paid out $134,599 in seven cases.Those disputed records included documents related to Ald. Edward Burke's security detail; a report by a consulting firm on police operations; police disciplinary records; and police equipment.
Most of those cases stemmed from disputes before Emanuel took office in May 2011. None of the ongoing 54 lawsuits were filed before 2013, and 36 were filed in 2016.
Matthew Topic, an attorney with civil rights firm Loevy & Loevy, has brought numerous records lawsuits against the city, including the Laquan McDonald video lawsuit and the recently settled Better Government Association suit over Emanuel's emails.
Topic said the city has shown improvement in its handling of records requests in the past year. The Police Department, in particular, has been "a bit better" about responding to FOIA requests, Topic said.
But Topic also said the city is "a long, long way from truly complying with the (law) on a regular basis."
Sarah Brune, executive director of the Illinois Campaign for Political Reform, said citizens have made it clear they're interested in more transparency from their government.
"Ideally, these cases would not be necessary because the city would be able to respond in a timely manner and provide the information that's requested," Brune said.
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