IN THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT MACOUPIN COUNTY, ILLINOIS AR 1 720;; JOHN KRAFT Metatarai?r Plaintiff, pro se . v. Case No: ?1 CITY OF Defendant .. COMPLAINT FOR DECLARTORY AND INJUNCTIVE RELIEF Introduction 1. This is an action to obtain a Court order declaring that Plaintiff, John Kraft, has a right to inspect, copy, and to receive a copy of certain public records he has requested from Defendant City of Carlinville under the Illinois Freedom Of Information Act 5 ILCS 1401/ et seq., and to order Defendants to produce those records. J_urisdiction and Venue 2. This Court has jurisdiction under 5 ILCS 140/11 because Plaintiff challenges the failure of Defendants, a public body of the State of illinois, to produce records responsive to a I FOIA request for public records, and Defendant?s other failures to comply with the FOIA. Venue is proper in Macoupin County under 5 ILCS 140/ 1 1(0) because it is Where the party denying the records maintains its main of?ce. Parties 3. Plaintiff John Kraft is a resident of the County of Edgar. 4. Defendant is a ?public body? as that term is de?ned in 5 ILCS Factual Allegations 5. This case concerns a FOIA request that John Kraft submitted by electronic mail tothe City of Carlinville (?City?) on January 16, 2017. The request asked the City to provide public records requested pursuant to See Exhibit A. Defendant?s Failure to Timely Respond 6. On February 10, 2017, Plaintiff sent another email to the City asking how long he would have to wait for a response to his FOIA request. See Exhibit B. 7. On February 15, 2017, Defendant responded to Plaintiff with a letter dated February 14, 2017 which stated the City was treating Plaintiff?s FOIA request as a request for a ?commercial purpose,? and demanded a payment of a $200.00 estimate prior to production of responsive documents, and required 35 working days to produce the records, among other things. See Exhibit C. 8. On February 16, 2017, Plaintiff reSponded to the City explaining he did not fall under the de?nition of a ?Commercial Requester? pursuant to Section 2(i) of FOIA, declined to make any payments, and demanded immediate production of the requested records among other things. See Exhibit D. 9. FOIA requires a public body to ?either comply with or deny a request for public records within 5 business days after receipt of the request.? 5 140/3 I 10. The deadline for the Defendant?s response to Plaintiff?s FOIA request was therefOre January 24, 2017. 11. Defendant did not provide any response until twenty business days (twenty-eight calendar days) after the February. 15, 2017 deadline. Defendant?s Failure to Provide Requested Records 12. FOLA de?nes ?Public records? under 5 ILCS l40/2(c) and the records requested by Plaintiff are public records of the City. Defendant?s Failure to Comply with requirements for FOIA Denials 13. Defendant?s first ?denial? occurred when the City failed to respond to the written request, extend the time for response, or deny the request within five business days after its receipt [5 ILCS l4. Defendant?s second ?denial? occurred when the City claimed the Plaintiff was a ?commercial requester? (See Exhibit C) even though the FOLA request specifically stated Plaintiff was. media and non-profit and the information requested would be used to inform the citizens of Carlinville of the actions of their public officials and of their rights and responsibilities (See Exhibit A). 15. Defendant?s third ?denial? occurred when the City attempted to impose a fee inconsistent with Section 6 Authority to charge fees [5 ILCS 140/ constituting a denial pursuant to Section 6(d) of FOIA [5 ILCS 16. Defendant?s ?denials? also failed to ?inform [Plaintiff] of the right to review by the Public Access Counselor,? to ?provide the address and phone number for the Public Access Counselor,? and ?inform [Plaintiff] of his right to judicial review? all of which FOIA required it to do so. 5 ILCS COUNT I ILINOIS FREEDOM OF INFORMATION ACT 17. Plaintiff re-alleges Paragraphs 1 through 16 of this Complaint as though fully set forth herein. 18. ?The records sought in Plaintiff?s FOIA request are public records of the public body and subject to disclosure under FOIA. 19. Because Defendant failed to timely reSpond to Plahitiff? 5 request, FOIA bars Defendant from refusing to produce records responsive to Plaintiff 3 request on the grounds that doing so would be unduly burdensome. See 5 ILCS 140/36). 20. Plaintiff is therefore entitled to have Defendant produce all records responsive to his FOIA request. 21. Because Defendant wrongly failed to produce the requested records, Plaintiff is entitled to an award of his reasonable costs under 5 ILCS 140/ Relief Reguested Plaintiff, John Kraft, respectfully requests that this Court: A. Enter a declaratory judgment that Plaintiff is entitled to the records it has sought in its FOIA request of January 16, 2017; B. Enter a declaratory judgment that Defendant violated FOIA by failing to respond within the timeperiod required under C. Order Defendant to produce all records responsive to Plaintiff?s FOIA request of January 16, 2017; D. Award Plaintiff reasonable costs; and E. Award Plaintiff any additional relief the Court deems just and-proper. COUNT II ILINOIS FREEDOM OF INFORMATION ACT 22. Plaintiff re-alleges Paragraphs 1 through 16 of this Complaint as though fully set forth herein. . 23. The records sought in Plaintiff?s FOIA request are public records of the public body and subject to disclosure under FOIA. 24. Defendant has not and cannot show any evidence that Plaintiff is or should be considered a omrnercial Requester? or that the request was for a ?Commercial Purpose? as those terms are de?ne in Section 2(0?10) in the FOIA. 25. Because Defendant failed to timely respond to Plaintiffs request, FOIA bars Defendant from refusing to produce records responsive to Plaintiffs request on the grounds that doing so would be unduly burdensome. See 5 ILCS 26. Because Defendant wrongly failed to produce the requested records, Plaintiff is entitled to an award of his reasonable! costs under 5 ILCS 140/ 11(1). Relief Reguested WHEREFORE, Plaintiff, John Kraft, respectfully requests that this Court: A. Enter a declaratory judgment that Plaintiff is not a commercial requester and the FOLA request was not for commercial purposes; B. Enter a declaratory judgment that Defendant violated FOIA by wrongly classifying the January 16, 2017 FOIA request as a commercial request for a commercial purpose; C. Order Defendant to produce all records responsive to Plaintiff?s FOIA request of January 16, 2017; D. Award Plaintiff reasonable costs; and E. Award Plaintiff any additional relief the-Court deems just and proper. COUNT ILINOIS FREEDOM OF INFORMATION ACT 27. Plaintiff re-alleges Paragraphs 1 through 16 of this Complaint as though fully set forth herein. 28. The records sought in Plaintiff?s FOIA request are public records of the public body and subject to disclosure under FOIA. 29. Defendant violated Section 6 of FOIA by imposing a fee inconsistent with Section 6. 30. Because Defendant wrongly failed to produce the requested records, Plaintiff is entitled to an award of his reasonable costs under 5 ILCS 140/ 1 Relief Reguested WI-IEREFORE, Plaintiff, John Kraft, respectfully requests that this Court: A. Enter a declaratory judgment that Defendant violated FOIA by imposing a fee inconsistent with the Act; B. Order Defendant to produce all records responsive to Plaintiff?s OLA request of January 16, 2017; C. Award Plaintiff reasonable costs; and D. Award Plaintiff any additional relief the Court deems just and proper. COUNT IV ILINOIS FREEDOM OF INFORMATION ACT 31. Plaintiff re-alleges Paragraphs 1 through 16 of this Complaint as though fully set forth herein. 32, The records sought in Plaintiff's request are public records oftl-ie public body and subiect to disclosure under FOIA. 33. Defendant violated Section 9(a) by failing to "inform [Plaintifi] nfthe right to review by the Public Access Ccunselor," to "provide the and phone number for the Public Access Counselor," and "inform [Plaintiff] of his right to judicial review." 7 all of which FOIA required it to do so Relief Reguested WHEREFORE, Plaintiff, John Kraft, respectfully requests that this Court: A Enter a declaratory judgment that Defendant violated Section 9(a) of FOIA by failing to "inform [Plaintiff] of the right to review by the Public Access Counselor," to "provide the address and phone number for the Public Access Counselor," and "inform [Plaintiff] of his right to judicial revievf' all of which FOIA required it to do 50.; B. Award Plaintiff rcasonablc costs; and C. Award Plaintiff any additional relief the Com deems just and proper. Dated: Respectfully submitted, John Kraft, pro x2 John Kraft EXHIBIT A From: John Kraft Sent: Monday, January 16, 2017 4:47 PM To: Subject: FOIA Request (Carlinville) - 1-16-2017 in accordance with the Freedom of information Act 1 am requesting the foiiowing. if you are not the FOIA officer please forward to the FOIA officer as required by statute. Electronic copies requested. As this deals with an election and an electoral board, 1 ask that you fulfil this request as quickly as possible. Copy of the following: 1) Cepy of recordings of all electoral board meetings in the past 60 days. 2) Copy of the Nominating Petitions for the upcoming Consolidated Election to be held on 3) 4) April 4, 2017 for the following candidates: Carla Brockmeier, Candidate for City Clerk Jody Reichman, Candidate for Treasurer Doug Downey, Candidate for Alderman, Ward 3 Sarah Oswald, Candidate for Alderman, Ward 4 Copy of all correspondence (concerning the electoral board) of any method to and from any of the following persons on the subject: Carla Brockmeier, City Clerk Deanna Demuzio, Mayor Rick Bertinetti, City Attorney Daniel Schuering, Electoral Board Attorney and/or his partners or employees Tim Coonrod, Electoral Board Chairman Joseph Direso, Electoral Board member Copy of all agendas, minutes, and public notices (IE: newspaper ads) of all Electoral Board meetings, including the meeting at Mr. Bertinetti?s private office and the Executive Session meeting held on December 28, 2016 prior to the open meeting on the same evening. Electronic copies are requested. This is not a commercial request. This is aiso a requesuor fee waiver, snouid anyiees be imposed, as inis .nimmauun bears an the pubic business ofme Caninviue and WM be used to infurm citizens ufthe actions oltheir pubiic otiiciais and of their rights and responsmilities. i qualify as both media and non fllofi! under the definitions in Sectiari 2 (E710) ("Cummerri'a/ pmpese"), Section 2 If) ("News media"), Section 2 (9) ["Recurrem IEquen'er'Q, and section 2 (ii) ["Vulumfrious request") aft/is Freedom of lnformation Act, for the purpoxss of being exempt the provisrans of Sectimi 3'1 {Requests for purposesi, Section 32 (Recurrent requestersl, Secnun 3.5 (Vuluminous quuesrsl, and Semen 6 (Autnerity In charge fees]. Thanks, John Kraft EXHIBIT From: John Kraft Sent: Friday, February 10, 2017 7:07 PM - To: Subject: RE: FOIA Request (Carlinyilie) - 1-16-2017 How long do i have to wait to receive these public records? From: John Kraft Sent: Monday, January 16, 2017 4:47 PM To: Subject: FOIA Request (Cariinviile) - 1?16?2017 in accordance with the Freedom of Information Act I am requesting the following. If you are not the FOIA officer please forward to the officer as required by statute. Electronic copies requested. As this deals with an election and an electoral board, 1 ask that you fulfil this request as quickly as possible. Copy ofthe following: 1) Copy of recordings of all electoral board meetings in the past 60 days. 2) Copy of the Nominating Petitions for the upcoming Consolidated Election to be held on April 4, 2017 for the following candidates: Carla Brockmeier, Candidate for City Clerk Jody Reichman, Candidate for Treasurer Doug Downey, Candidate for Alderman, Ward 3 Sarah Oswald, Candidate for Alderman, Ward 4 3) Copy of all correspondence (concerning the electoral board) of any method to and from any of the following persons on the subject: Carla Brockmeier, City Clerk Deanna Demuzio, Mayor Rick Bertinem, City Attorney Daniel Schuerlng, Electoral Board Attorney and/or his partners or employees Tim Coonrod, Electoral Board Chairman Joseph Direso, Electoral Board member a) Capy oiall agendas, minutes, and puplic notices (IE: newspaper ads] oiall Electoral Board meetings, including the meeting at Bemnetti's private office and the Executive Session meeting held on December 28, 2016 prior to the open meeting on the same evening, Electronic copies are requested. This is not a :ummercial request. This is also a request ioriee waiver, should any fees be imposed, 25 this information peers onthe public business oi the Carilnville and will be user: to iniorm citizens oi the onions oi their public officials and oi their rights and responsibilities. I qualify as both media and non profit under the definitions in Secriuri 2 (GBP710) ("Cummercial purpose"), Senior: 2 (fl ("News media"), Section 2 ("Recurrent requester"), and Section 2 (hi ("Volummous request") of the Freedom of information Act, [or the purposes of being exempt to the prowsions of Section 3.1 (Requests for commersio/ purposes), Section 32 (Recurrent rem/esters), Sect/'an 3V6 (Va/uminaus requests), and Section 5 (Authority to charge fees). Thanks John Kraft EXHIBIT Schuering Law, Ltd. poet Office Bax 9622 sonngfieid, IL 52791-9624 -- MAM Amman-antler list-3975 545m February (4, 1017 Certified Mail Electronic Receipt Requested Mr. John Kraft RE: The City Of Macoupin County, Illinols John Kraft Freedom of Information Act Requesr Dear Kraft: The City of Carlinviile is in receipt of yuur FOIA Request dated January 16, 2017 [Lhe Request"), and received by the City on January 17. it was rorwarded to me by the FOIA Diricer ror reply. Pursuant to Section 3.1 of the Freedam of Information Ad [the "Ad"i, 5 140/11, 1 am Writing to Inform you that the City of Cam'riville is treating the Request as a request for a "commerciai purpose," as the term is defined in section 11:40) or the Act at 21:40), provide you an estimate 111' the time required by the City to provide the records requested and an estimate or me ices to be charged, which the City will require you to pay in full before copying the requested documents, and dew a pm of your request pursuant to one or mare of the exemptions out in the Act. Id. at its provided for in Section 3.1(b) or the Act, the City will "comply with your request in a reasunable period considenng {he size and compiexity of the request, and givmg priority to records requested for noncommercial purpnses." Id. at Section 711 <1me Act exempts "communications between [the City] and an attorney . . representing the public body that would not be subject to discuvery in litigation . . from disclosure under the Act. Id. at (711mm). Under Illinnis law, communications between a client and their attorney is privileged, and disclosure of these communications is "preyentledi . . in Judiciai praceedinfl." People Radoici'c, 291: ii. App (isti 101693. ii 14. 969 haze 501, 505, affd' 1013 IL 114197, 1 14, 993 N.E,zd 1112 (tiring In re Marriage of Decker, 153 ill. 2d 293, 312, we 1094, 1101 (1992)), The purpose or this bar on disclosure is to encourage free and open consultation Mr. John Kraft Illinois leaks February 14. 1017 File: The City or Carlinville, Illinois Matter: John Krafr Freedom oi information An Request Page 2 between a client and their attorney. Decker, 153 Ill. 1d at 312-13, 606 at uni [clung Conscridarian Cool to. v. Bucyrus-Erie no, 39 Ill. 2d ioa, in- 15, 431 250, 256 {1982), People v. Adam, 51 Ill. 16 no, 4a, 180 205, 207 [1972>>. This bar on disclosure has been extended to communications with attorneys that occur through agents. People v. Ryan, 40 Ill. App. 2d 352, 35o, 189 763, 765 (Ill. App. Ct. 1963), reVd on other grounds, 30 Ill. 1d 456, 197 15 (1964) (citing 55 Am. Jur. Witnesses 5 5m). Thererore, the City denies your request for "all (urrespondence {concerning the electoral board) oi airy method and firm any or the fulluwing persons on the subject . . . Rick aertirietti, City Attorney [and] Daniel Schoenng, Electoral Beard Attorney and/or his partners or employees . . under section mum) of the Act, as your request seeks "communications between [the City) and an attorney . . . representing the public body that would not be subject to discovery In litigation . . 5 ILCS With respect to the remainder of yuur requests, the City estimates that it will require (35) working days to respond to your requests. The City will not be waiving fees to produce responsive documents, and estimates that the tees assessed will total $200.00. Pursuant to Section Lila) or the Am, the City has elected to require payment or those fees prior to production cf responsive documents. Id. at respect to the denial contained herein, you are hereby notified pursuant to Section 9la) 0f the Ad that you have the right to have (his decision reviewed by the Public ACCESS Counselor. Her contact information is as fallaws: MS. Sarah Putt. Public Access Counselor, Office of the Attorney General, 500 South Second Street, Springfield, Illinois 62701. Thank you far your attention to this correspondence. II I may supply you with additional Information, please cuntact me at your convenience. Very Truly Vuurs, Scbuerlng Law By: Daniel P. senuerlng cininnienaul Mr. John Kraft illinois Leaks February 14, 2017 File: The City of Carlinvitle, iliinois Matter: John Kraft Freedom of Information Act Request Page 3 - Cc: Hon: Deanna Demuzio, Mayor Mr. Richard J. Bertine't'ti, City Attorney Ms. Carla Brockmeier, City ClerkfFOiA Officer zoom 13.602 Letter Kraft - Carlinville FOIA EXHIBIT Frum: John Kvafi sen Wednesday, February 15, 2017 10.45 AM 1 . Subject: Carlinville 17154017 FOIA Request Mr Schueling, You have absolutely no basis to claim my min request is a commercial request. There is no provision in ioryou or anyone else to declare that this is a commercial request -- your only recourse, should you believe it is, would be to press charges against me torviolatingthe FDIA atter finding out that i vioiated it [which won'! because this is not a commercial request) The City oi Carlinville has violated the 5-day mandatory response time for this request [5 iLcs tho/am], and it is my beliei that you are attempting to claim "commercial request" to somehow try and avoid that violation. it will not work. As i stated in the original request, it is not a commercial request, and i am "media" and "non-profit" as that is defined within the Freedom or Informatiun Act, Section 2m, and by its very definition in new), media and non-profit are exempt from being declared as "commercial request', Accordingly, I will not be paying any "estimate" pnorto, or after, receivingthe requested records [5 ILCS public body that fails to respond to a request witth the requislte periods in this Section but thereafter provtdes the requester with copies of the zequested pubtrc records may not impose a fee for such coyotes. You have also automatically waived any claim the records requested are "unduly hurdensome" [5 vac/atoll thru the titys failure to respond within the requisite period to respond, Even if, for the sake of argument, that it was a commercial request (and it is not a commercial request), the city also violated the Zledav mandated response time tor that purpose please note that Section 3- 1 says "21 days" while Section 3(di states "5 business days" which should tell you the 11 days is calendar days, not business days, and should have been responded to no laterthan the day of February, I do not grant any extensions for the time to provide the requested records. They are already late and i would appreciate an expedited response by providing those requested records. Electronic communications requested. Thanks, Krafi mm cum mu sun-um lye-s CI-yuy, Syrinnfithl. ll IN THE CIRCUIT COURT OF JUDICIAL CIXCUIT COUNTY, ILLINOIS JOHN KRAFT 35 v. CITY OF CARLINVILLE SUMMONS Tu nu defendant Cm- City Clark. City or 550 Nor": Carlinville, Blinds 62626 YOU ARE and mulled In file an answer in {his case, at otherwise fl]: your appeamcc, Macoupin County Connhouxr. 201 East Main Street, Cadinviue, minais 61626 0mm mung, mum mmkr. mu. minding my) Illinois. wuhiu 30 days aflu sacrh'icc nf this summon. ml counling [he ol scn'ice. IF YOU FAIL TO DO 50. A JUDGMENT OR DECREE BY DEFAULT MAY BE TAKEN AGAINST YOU FORTHE REUEF ASKED IN THE in the 0mm: ohh: cluk 05 this To me officer: Thix summons mus: be "mine: by m: um: lam-ms when il vus aim [at xwau. wilh of unicc and ram irany. nm-r serum. I1 unit: (mum hr made. mi; summons be mama 5n mac-sea ms gunmanany: Inc; nu due, .'fl :l of rm- n) L'lnlul'mm 0mm Nm John Kmfi Momey for pm 3 Mduss Cily Telephul: D11: (Ta hr: by omen un copy kn wilh Mandala! crusher my FEES Service and return . . . . . . . . . . . . . . . . . . 5 Xh'lcs Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. Sheriff of. County I ccr?fy that I scar?d this summons on ts as follows: (Indwidoai defendantsupersonai}: By leavmg 3 COPY and a copy of the complaint with each individuai pcrsonally, as follows: Namof ?afmdum an. 01 Niel {Individ ual defendants?abode): By leaving sea-33y and acopy ofmccomplain at the ml place individual Madamwithapezmn ofthe family, or a person residing Ma, of?m age 0513 yrans atom-ads, para-ma of?ine mauso?hom? mm and also by sending a copy of the am! of the complaint in a sealed emlelope with postage folly prepaid addressod to each individual defemm at his or her usual plane ofabodc, as foliows: Mom of Patton with whom Ell! than a! maria Dan nailing (Corporation ts}: By leaving a copy and a copy of the complaint with the mgistcred agent. office: UI agcnl of each de- fondanl corporation, as follows: Dufan?nt annotation Hoist-rod mm. offinr or amt Duh 0* mini {0 the: son'iac): . Shoriff of County By . Deputy