Return Date: No return date scheduled Hearing Date: 12/10/2018 9:30 AM - 9:30 AM Courtroom Number: 2008 Location: District 1 Court Cook County, IL FILED DATE: 8/10/2018 4:20 PM 2018CH10192 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION BETTER GOVERNMENT ASSOCIATION, Plaintiff, v. CITY OF CHICAGO MAYOR’S OFFICE, CHICAGO INFRASTRUCTURE TRUST, Defendants. ) ) ) ) ) ) ) ) ) ) FILED 8/10/2018 4:20 PM DOROTHY BROWN CIRCUIT CLERK COOK COUNTY, IL 2018CH10192 2018CH10192 COMPLAINT NOW COMES Plaintiff, BETTER GOVERNMENT ASSOCIATION, by its undersigned attorneys, LOEVY & LOEVY, and brings this suit against Defendants CITY OF CHICAGO MAYOR’S OFFICE and CHICAGO INFRASTRUCTURE TRUST to obtain transparency into Defendants’ selection of The Boring Company for the O’Hare Express System Project. INTRODUCTION 1. Pursuant to the fundamental philosophy of the American constitutional form of government, it is the public policy of the State of Illinois that all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of the Illinois Freedom of Information Act (“FOIA”). 5 ILCS 140/1. 2. Restraints on access to information, to the extent permitted by FOIA, are limited exceptions to the principle that the people of this state have a right to full disclosure of information relating to the decisions, policies, procedures, rules, standards, and other aspects of government activity that affect the conduct of government and the lives of the people. 5 ILCS 140/1. FILED DATE: 8/10/2018 4:20 PM 2018CH10192 3. All public records of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt. 5 ILCS 140/3. 4. Under FOIA Section 11(h), “except as to causes the court considers to be of greater importance, proceedings arising under [FOIA] shall take precedence on the docket over all other causes and be assigned for hearing and trial at the earliest practicable date and expedited in every way.” PARTIES 5. Plaintiff BETTER GOVERNMENT ASSOCIATION (“BGA”) is a nonpartisan, nonprofit news organization and civic advocate working for transparency, efficiency and accountability in government across Illinois. 6. Defendant CITY OF CHICAGO MAYOR’S OFFICE is a public body located in Cook County, Illinois. 7. Defendant CHICAGO INFRASTRUCTURE TRUST is a public body located in Cook County, Illinois. BACKGROUND 8. In 2005, the Chicago City Council approved a $200-plus million O’Hare express train station project under Block 37 downtown. The project was never finished, but taxpayers are still paying off the loan to construct it. 9. Defendants issued a request for proposals on March 23, 2018, for the O’Hare Express System Project for express transportation service between downtown and O’Hare. 10. Proposals were submitted by the two final companies that had been shortlisted in an earlier, completed Request for Qualifications process. -2- FILED DATE: 8/10/2018 4:20 PM 2018CH10192 11. Less than three months later, on June 14, 2018, Mayor Rahm Emanuel announced “selection” of The Boring Company to build and operate an express service to O’Hare International Airport. See Mayor’s Press Office Website, Mayor Emanuel Announces Company Selected to Build and Operate Chicago Express Service Between Downtown and O'Hare Airport, June 14, 2018. 12. In a statement made in the presence of the Mayor without any disagreement, the Boring Company said that it expects to start drilling this year, and perhaps as soon as within three months, assumes it will have the necessary approvals in that timeframe, and considers as a benefit the fact that Chicago has a small number of approving authorities that operate in a streamlined fashion. 13. At the time the Mayor announced the selection of The Boring Company, the selection was sufficiently final for the Mayor to announce that it “will . . . create thousands of good-paying jobs.” THE REQUESTS AND DENIALS 14. On June 15, 2018, BGA requested from Defendants: “1. All responses in their entirety to the O’Hare Express System Project Request for Proposals and Request for Qualifications, including but not necessarily limited to winning and non-winning proposals. 2. All reports, memorandums or any other documents that detail the criteria used to select the winning proposal for the O’Hare Express System Project, including but not necessarily limited to evaluations of responses, policies, procedures and other such records that governed the review and selection of the winning proposal. 3. All reports, memorandums or any other documents that detail the criteria used to create the O’Hare Express System Project.” A true and correct copy of the requests and related materials are attached as Group Exhibits A and B. -3- FILED DATE: 8/10/2018 4:20 PM 2018CH10192 15. Defendants both denied the requests in their entirety and produced no responsive records. 16. With regard to all of the requests, and for responses to both the RFQ and the RFP, Defendants claimed that the records are subject to the Section 7(1)(h) exemption, which applies to “proposals and bids for any contract, grant, or agreement . . until an award or final selection is made.” 17. At the time of the request, Defendants had awarded the RFP to The Boring Company and made a final selection of The Boring Company as the winner. 18. At the time of the request, Defendants had made an award and a final selection of the short-list positions as the result of the RFQ to The Boring Company and O’Hare Express, LLC. 19. With regard to the second and third requests, Defendants further claimed that they were unable to identify the documents that detailed the criteria used to select the winning proposal or the criteria used to create the project without an “undue burden.” 20. BGA contacted Defendants in an effort to resolve this issue but Defendants declined to change their position. COUNT I –WILLFUL VIOLATION OF FOIA – MAYOR’S OFFICE 21. The above paragraphs are incorporated by reference. 22. MAYOR’S OFFICE is a public body under FOIA. 23. The records sought in BGA’s FOIA request are non-exempt public records of MAYOR’S OFFICE. 24. MAYOR’S OFFICE has willfully and intentionally violated FOIA by refusing to produce the requested records. -4- FILED DATE: 8/10/2018 4:20 PM 2018CH10192 COUNT II –WILLFUL VIOLATION OF FOIA – CHICAGO INFRASTRUCTURE TRUST 25. The above paragraphs are incorporated by reference. 26. CIT is a public body under FOIA. 27. The records sought in BGA’s FOIA request are non-exempt public records of 28. CIT has willfully and intentionally violated FOIA by refusing to produce the CIT. requested records. WHEREFORE, BGA asks that the Court: i. in accordance with FOIA Section 11(f), afford this case precedence on the Court’s docket except as to causes the Court considers to be of greater importance, assign this case for hearing and trial at the earliest practicable date, and expedite this case in every way; ii. declare that Defendants have violated FOIA; iii. order Defendants to produce the requested records; iv. enjoin Defendants from withholding non-exempt public records under FOIA; v. order Defendants to pay civil penalties; vi. award Plaintiff reasonable attorneys’ fees and costs; vii. award such other relief the Court considers appropriate. -5- FILED DATE: 8/10/2018 4:20 PM 2018CH10192 RESPECTFULLY SUBMITTED, /s/ Matthew V. Topic ____________________________ Attorneys for Plaintiff BETTER GOVERNMENT ASSOCIATION Matthew Topic Joshua Burday LOEVY & LOEVY 311 North Aberdeen, 3rd Floor Chicago, IL 60607 312-243-5900 foia@loevy.com Atty. No. 41295 -6- FILED DATE: 8/10/2018 4:20 PM 2018CH10192 Alejandra Cancino Reporter Better Government Association 223 W. Jackson Blvd., Ste 300 Chicago, IL 60606 Office of the Mayor City Hall 121 N LaSalle, Room 507 Chicago, IL 60602 June 15, 2018 FOIA Officer, This is a request for public records under the Illinois Freedom of Information Act. Please make available for my inspection on Friday June 22, the following public records in the trust’s possession, custody or control: 1. All responses in their entirety to the O’Hare Express System Project Request for Proposals and Request for Qualifications, including but not necessarily limited to winning and non-winning proposals. 2. All reports, memorandums or any other documents that detail the criteria used to select the winning proposal for the O’Hare Express System Project, including but not necessarily limited to evaluations of responses, policies, procedures and other such records that governed the review and selection of the winning proposal. 3. All reports, memorandums or any other documents that detail the criteria used to create the O’Hare Express System Project. As this request is made in my capacity as a journalist, time is of the utmost concern. If you feel any portion of this request is exempt from public scrutiny, please make available that portion not in dispute and specify the records being withheld and the specific statutory authority under which you are doing so. I am happy to make myself available at your convenience to discuss any questions or concerns you may have, and to help expedite this process. Thank you for your consideration. Thank you for your assistance, Alejandra Cancino 312.821.9037 acancino@bettergov.org Exhibit A FILED DATE: 8/10/2018 4:20 PM 2018CH10192 O FFICE O F M AYOR R AHM E MANUEL C ITY O F C H IC A G O June 22, 2018 Alejandra Cancino acancino@bettergov.org Dear Ms. Cancino: On behalf of the City of Chicago Office of the Mayor (“Mayor’s Office”), I am responding to your Freedom of Information Act (“FOIA”) request received on June 15, 2018, which seeks: 1. All responses in their entirety to the O’Hare Express System Project Request for Proposals and Request for Qualifications, including but not necessarily limited to winning and non-winning proposals. 2. All reports, memorandums or any other documents that detail the criteria used to select the winning proposal for the O’Hare Express System Project, including but not necessarily limited to evaluations of responses, policies, procedures and other such records that governed the review and selection of the winning proposal. 3. All reports, memorandums or any other documents that detail the criteria used to create the O’Hare Express System Project. With respect parts 1- 3 of your request, please be advised that the records you seek are exempt from disclosure pursuant to Section 7(1)(h) of FOIA, which exempts: Proposals and bids for any contract, grant, or agreement, including information which if it were disclosed would frustrate procurement or give an advantage to any person proposing to enter into a contractor agreement with the body, until an award or final selection is made. Information prepared by or for the body in preparation of a bid solicitation shall be exempt until an award or final selection is made. 5 ILCS 140/7(1)(h). The Boring Company and the City of Chicago have recently entered into the negotiating phase for the O’Hare Express System (OES) Project. Section 7(1)(h) of FOIA specifically exempts bids, proposal documents, evaluation criteria and evaluations until a final contract is awarded. In this case, there has been no contract awarded for this RFP. Because of the ongoing competitive process, the public release of proposal materials could give an advantage to another applicant. For this reason, these materials are exempt from production under this section. Additionally, your request for “any other documents” is does not sufficiently identify the records you are seeking, and is therefore burdensome. Section 3(g) of FOIA provides that “[r]equests calling for all records falling within a category shall be complied with unless compliance with the request would be unduly burdensome for the complying public body and there is no way to narrow the request and the 121 NORTH LASALLE STREET, SUITE 500, CHICAGO, ILLINOIS 60602 FILED DATE: 8/10/2018 4:20 PM 2018CH10192 burden on the public body outweighs the public interest in the information.” 5 ILCS 140/3(g). In order to comply with your request as written, this department would need to identify, procure and review an unknown quantity of records. Without direction from you as to which specific records you seek, such an endeavor would pose an undue burden on the operations of this department. As the Illinois Attorney General’s Public Access Counselor has noted (see 2017 PAC 47756, issued June 20, 2017), Illinois courts have held, “[a] request to inspect or copy must reasonably identify a public record[.]” Chicago Tribune Co. v. Dept. of Financial and Professional Regulation, 2014 IL App (4th) 130427, par. 33. A FOIA request “reasonably describes records if ‘the agency is able to determine precisely what records are being requested.’” Kowalczyk v. Dept. of Justice, 73 F.3d 386, 388 (D.C. Cir. 1996) (quoting Yeager v. Drug Enforcement Admin., 678 F.2d 315, 326 (D.C. Cir. 1982)). Therefore it is necessary that this portion of your FOIA request be narrowed and clarified. If you would like assistance in narrowing your request, please contact me, and I will assist you. Otherwise, for the reasons provided above, the Mayor’s Office is unable to respond to your FOIA request as currently drafted. If you agree to narrow your request, you must submit a revised written request to my attention. The Mayor’s Office will take no further action or send you any further correspondence unless and until your current request is narrowed in writing. If we do not receive your narrowed request within fourteen (14) calendar days of the date of this letter, your current request will be denied. In the event that we do not receive a narrowed request and your current FOIA request is therefore denied, you have the right to have a denial reviewed by the Public Access Counselor (PAC) at the Office of the Illinois Attorney General, 500 S. 2nd Street, Springfield, Illinois 62706, (877) 299-3642. You also have the right to seek judicial review of your denial by filing a lawsuit in Cook County Circuit Court. Sincerely, Shannon I. Leonard Freedom of Information Officer FILED DATE: 8/10/2018 4:20 PM 2018CH10192 From: Subject: Date: To: Cc: Matt Topic matt@loevy.com BGA FOIA Denials re Boring Co June 26, 2018 at 4:42 PM FOIA@chicagoinfrastructure.org, Shannon.Leonard@cityofchicago.org Alejandra Cancino acancino@bettergov.org Greetings. I represent BGA in connection with the attached denials. We hope we can avoid litigation and ask that you respond to this email within a week. With regard to the first request, the exemption does not say "until a contract has been executed." Rather, it says "until an award or final selection is made." A recent Mayor's Office press release is titled "Mayor Emanuel Announces Company Selected to Build and Operate Chicago Express Service Between Downtown and O'Hare Airport," and states "Mayor Rahm Emanuel today announced selection of The Boring Company to build and operate an express service to O’Hare International Airport," which the Mayor used to claim that the decision "will keep the city on the cutting edge of progress, create thousands of good-paying jobs and strengthen our great city for future generations." The press release also makes clear that the City is now negotiating solely ("one-on-one") with Boring Co. And it explains that Boring "was one of two final teams selected to respond." With regard to the second and third requests, while deliberations about and evaluations of the bids may potentially be exempt, we disagree that the criteria used to evaluate the bids are the expression of an opinion as required under the deliberative process exemption, and we disagree that releasing the criteria would frustrate procurement or provide an advantage to a bidder. You have certainly not provided "a detailed factual basis for the application of any exemption claimed" as required by Section 9(a) of the FOIA statute. With regard to your undue burden claim, which seems to be focused solely on whether the records were reasonably described and does not explain what burden is involved or otherwise comply with Section 3(g), we disagree that "documents that detail the criteria used to select the winning proposal" or "documents that detail the criteria used to create" the project do not reasonably describe the records. While you cite to some fairly old federal cases purporting to require a "precise" description, the DOJ's current (and comprehensive) FOIA Guide explains that "the legislative history of the 1974 FOIA amendments indicates that a description of a requested record is sufficient if it enables a professional agency employee familiar with the subject area to locate the record with a 'reasonable amount of effort.'" We are quite confident a judge, and the residents of the City of Chicago for that matter, will find implausible your claim that you cannot reasonably identify the documents containing the criteria used to evaluate a tremendously expensive capital project like this. While we are not privy to your internal documents, we would expect, based on our experience with RFPs generally, FILED DATE: 8/10/2018 4:20 PM 2018CH10192 documents, we would expect, based on our experience with RFPs generally, there to be some kind of scorecard or other grading criteria used to score the bids. We look forward to a prompt response, but if we do not hear back in a week, we will proceed accordingly. -- Matthew Topic Loevy & Loevy 311 North Aberdeen, 3rd Floor Chicago, IL 60607 312-789-4973 (direct) 773-368-8812 (cell) matt@loevy.com www.loevy.com/attorneys/matthew-v-topic @mvtopic To check my meeting availability: https://freebusy.io/matt@loevy.com Encrypted communications available. The sender of this email is an attorney. The information contained in this communication is confidential, may be attorney-client privileged, may be attorney work product, and is intended only for the use of the addressee. It is the property of the sender. Unauthorized use, disclosure or copying of this communication or any part thereof is strictly prohibited and may be unlawful. If you have received this communication in error, please notify me immediately by return e-mail, and destroy this communication and all copies thereof, including all attachments. ACancino_BGA_Respon se.pdf FILED DATE: 8/10/2018 4:20 PM 2018CH10192 O FFICE O F M AYOR R AHM E MANUEL C ITY O F C H IC A G O July 13, 2018 matt@loevy.com Matt Topic Loevy and Loevy 311 N. Aberdeen Chicago, IL 60607 RE: BGA FOIA denial re Boring Company Dear Mr. Topic, We are in writing in response to your email dated June 26, 2018 in which you objected to the Mayor’s Office’s response to Alejandra Cancino’s Freedom of Information Act (“FOIA”) request dated June 15, 2018. In your email, you assert that FOIA exemption 7(1)(h) would not apply because the CIT and City of Chicago (“City”) have entered into negotiations with the Boring Company (“Boring”) regarding the O’Hare Express System Project (“Project”) and that you consider that action a ‘final selection.’ For the reasons set forth below, we respectfully disagree with your assertion. Section 7(1)(h) of FOIA provides that the following documents are exempt from disclosure: “[p]roposals and bids for any contract, grant or agreement, including information which if it were disclosed would frustrate procurement or give an advantage to any person proposing to enter into a contractor agreement with the body, until an award or final selection is made. Information prepared by or for the body in preparation of a bid solicitation shall be exempt until an award or final selection is made.” This Project was commenced in accordance with both State and City procurement laws. As such, the CIT and City issued a Request for Proposal (“RFP”) for the Project which is posted at http://chicagoinfrastructure.org/initiatives/ord-express. The RFP demonstrates that there has been no award or final selection of the contractor for this Project and that exemption 7(1)(h) applies to Ms. Cancino’s FOIA request. For instance, Section 1.6 refers to the current state of the Project, an “Invitation to Exclusive Negotiations.” This current phase is further described in Section 5 which provides that “the proposer shall be entitled to a period of exclusive negotiations with the CIT and the City regarding the project, and the CIT and City will not negotiate with another Proposer regarding the Project.” Of note, Section 5.3 allows the CIT and City to revoke 121 NORTH LASALLE STREET, SUITE 500, CHICAGO, ILLINOIS 60602 FILED DATE: 8/10/2018 4:20 PM 2018CH10192 the invitation to exclusive negotiations and “issue a new Invitation to Exclusive Negotiations to another Proposer.” Finally, Section 5.4 of the RFP provides that “[a]pproval of the transaction by the City Council is a condition precedent to the execution of any Project Agreement executed at the conclusion of the negotiation phase.” The above terms, as with other language in the RFP, demonstrate that there has been “no award or final selection” for the Project as yet. In circumstances where there has been no final selection of a contractor, the Public Access Counselor (“PAC”) agrees with the assertion of exemption 7(1)(h) by public bodies. 2016 PAC 43086 is analogous. In that matter, the PAC found that the public body “was in the process of negotiating contract terms as a precondition to seeking approval from the District’s Board of Commissioners to enter into an agreement” and RFP responses were therefore exempt. This is exactly the Phase the CIT is in with Boring. Also, in 2013 PAC 26007, the PAC after describing the contract process utilized in the matter, found that because no contract or final selection was made, the RFP documents were exempt from disclosure. Similarly, in 2012 PAC 19608, a requester sought proposals on a recycling program. The PAC found in favor of the public body, holding that, as there was no final selection of a vendor, the exemption 7(1)(h) was properly asserted. Your email assertions ignore the use of the modifier ‘final’ (‘final selection’) in FOIA exemption 7(1)(h). Though the City has selected the Boring Company for exclusive negotiations, no final selection has been made. To properly interpret Section 7(1)(h), the modifier “final” must be considered. A general rule of statutory construction is that every word of a statute must be given plain meaning and not ignored. Statutory language should not be made superfluous. See Murphy-Hylton v. Lieberman Management Services, Inc. 2016 Il 120394 ¶25. (See also Arlington Park Racecourse LLC v. Illinois Racing Bd., 2012 IL App (1st) 103743 ¶35 (2012) “The prepositional phrase ‘from that source’ modifies the preceding nouns...”; Carroll v. Community Health Care Clinic, Inc., 2017 IL App (4th) 150847 ¶28 (2017). “‘Aggregate’, an adjective modifying the noun ‘proportion’”). Lastly, regarding your objection to the assertion that a portion the FOIA request was burdensome, the Mayor’s Office’s concern with the FOIA request was with the use of the term “any other documents.” The language is not specific enough for the Mayor’s Office to be able to precisely respond to the request. Without clarity, the Mayor’s Office would be guessing as to what documents are being sought. We remain committed to working with Ms. Cancino to narrow the language of the request. Please reach out to me to discuss and narrow this portion of the request. Thank you for your attention to this matter. Do not hesitate to call if you would like to discuss this further. Sincerely, Shannon I. Leonard Freedom of Information Officer FILED DATE: 8/10/2018 4:20 PM 2018CH10192 From: Subject: Date: To: Grant Klinzman Grant.Klinzman@cityofchicago.org RE: BGA story August 9, 2018 at 4:12 PM Alejandra Cancino acancino@bettergov.org Hey Alejandra – answers below: 1. Please provide copies of any assessments the city has conducted on the value of the proposed easements. This is an active procurement and I can’t comment on this. 2. If the The Boring Co. runs into utility lines or water mains or if any private property is damaged, who would pay for the damage? The Boring Company 3. Is there a transportation plan for the trucks transporting dirt from the tunnel? Where will the dirt be taken? Please provide a copy of the transportation plan. Yes, there will be. That plan is currently under development and will be part of the contract that is presented to the City Council. 4. Are there any federal permits or environmental hurdles to overcome? What are they? Yes. Just like any other major infrastructure project. The specific permits and processes will be determined by U.S. DOT, federal and local laws and regulations, and the final contract language, which is currently being negotiated. 5. If Musk’s plan succeeds, what would happen if a transportation vehicle breaks down inside the tunnel? A safety plan will be a part of the contract that will be presented to Council 6. Who would provide security, police, fire and rescue, labor, maintenance? At what cost? All operating and maintenance costs (including labor) will be the responsibility of The Boring Company. 7. Please provide the details of any revenue studies that marry operating expenditures, capital costs, ridership revenue, and any advertising and retail revenue streams. Again, please remember this is an active procurement and I can’t provide this. 8. What happens if The Boring Co the express system operates at a loss? Would the city make it whole? No. 9. What happens if The Boring Co. decides to walk away? Would the city take over the system? system? FILED DATE: 8/10/2018 4:20 PM 2018CH10192 Taxpayer protection guarantees will be part of the contract language, which is currently being negotiated and will be presented to the City Council. 10. Please detail all the guarantees in place to ensure that taxpayers never subsidize or otherwise get left with any of ancillary costs of this system? Same answer as previous question. 11. Please provide the details of any transportation feasibility study on who would use the express system and at what frequency? See Exhibit C to the RFQ (starts at page 49 - http://chicagoinfrastructure.org/wpcontent/uploads/2017/11/OES-RFQ-Complete-ADD2-Clean-20180119-2.pdf) 12. How would passengers get to the Loop station from their point of origin? How far would the the airport station be from the terminal? And how would users of the express train get from the station to the terminal? The airport station will be located under Parking Lot B, adjacent to Terminal 2 – access to terminals will be similar to the existing blue line station 13. The ridership report included in the RFQ indicates 40 percent of daily riders would opt for a express service. The report does not say how it arrived at those figures. Can you provide the data to back up that estimate? The methodology for the ridership calculations is addressed in the ridership report (link above). From: Alejandra Cancino Sent: Tuesday, August 07, 2018 3:38 PM To: Grant Klinzman Subject: BGA story Hi, Grant. I’m working on a story about the proposed express train to O’Hare and have a number of questions about it for Mayor Rahm Emanuel, including the following: 1. Please provide copies of any assessments the city has conducted on the value of the proposed easements. 2. If the The Boring Co. runs into utility lines or water mains or if any private property is damaged, who would pay for the damage? 3. Is there a transportation plan for the trucks transporting dirt from the tunnel? Where will the dirt be taken? Please provide a copy of the transportation plan. 4. Are there any federal permits or environmental hurdles to overcome? What are they? 5. If Musk’s plan succeeds, what would happen if a transportation vehicle breaks down inside the tunnel? 6. Who would provide security, police, fire and rescue, labor, maintenance? At what cost? 7. Please provide the details of any revenue studies that marry operating expenditures, capital costs, ridership revenue, and any advertising and retail revenue streams. FILED DATE: 8/10/2018 4:20 PM 2018CH10192 costs, ridership revenue, and any advertising and retail revenue streams. 8. What happens if The Boring Co the express system operates at a loss? Would the city make it whole? 9. What happens if The Boring Co. decides to walk away? Would the city take over the system? 10. Please detail all the guarantees in place to ensure that taxpayers never subsidize or otherwise get left with any of ancillary costs of this system? 11. Please provide the details of any transportation feasibility study on who would use the express system and at what frequency? 12. How would passengers get to the Loop station from their point of origin? How far would the the airport station be from the terminal? And how would users of the express train get from the station to the terminal? 13. The ridership report included in the RFQ indicates 40 percent of daily riders would opt for a express service. The report does not say how it arrived at those figures. Can you provide the data to back up that estimate? The deadline is Thursday at 5 p.m. Thank you in advance, Alejandra Cancino Reporter Better Government Association e: acancino@bettergov.org o: 312.821.9037 t: @WriterAlejandra This e-mail, and any attachments thereto, is intended only for use by the addressee(s) named herein and may contain legally privileged and/or confidential information. If you are not the intended recipient of this e-mail (or the person responsible for delivering this document to the intended recipient), you are hereby notified that any dissemination, distribution, printing or copying of this e-mail, and any attachment thereto, is strictly prohibited. If you have received this e-mail in error, please respond to the individual sending the message, and permanently delete the original and any copy of any e-mail and printout thereof. FILED DATE: 8/10/2018 4:20 PM 20180H10192 FILED DATE: 8/10/2018 4:20 PM 2018CH10192 Alejandra Cancino Reporter Better Government Association 223 W. Jackson Blvd., Ste 300 Chicago, IL 60606 Leslie Darling Executive Director Chicago Infrastructure Trust 35 E Wacker Drive, Suite 1450 Chicago, IL 60601 June 15, 2018 Ms. Darling, This is a request for public records under the Illinois Freedom of Information Act. Please make available for my inspection on Friday June 22, the following public records in the trust’s possession, custody or control: 1. All responses in their entirety to the O’Hare Express System Project Request for Proposals and Request for Qualifications, including but not necessarily limited to winning and non-winning proposals. 2. All reports, memorandums or any other documents that detail the criteria used to select the winning proposal for the O’Hare Express System Project, including but not necessarily limited to evaluations of responses, policies, procedures and other such records that governed the review and selection of the winning proposal. 3. All reports, memorandums or any other documents that detail the criteria used to create the O’Hare Express System Project As this request is made in my capacity as a journalist, time is of the utmost concern. If you feel any portion of this request is exempt from public scrutiny, please make available that portion not in dispute and specify the records being withheld and the specific statutory authority under which you are doing so. I am happy to make myself available at your convenience to discuss any questions or concerns you may have, and to help expedite this process. Thank you for your consideration. Thank you for your assistance, Alejandra Cancino 312.821.9037 acancino@bettergov.org Exhibit B FILED DATE: 8/10/2018 4:20 PM 20180H10192 TRUST 35 EAST WACKER DRIVE . SUITE 1450 . CHICAGO, IL 60601 0312-809-8080 June 22, 2018 Via E-mail: aggncinm?lbettergDVArg Alejandra Cancino Reporter Better Government Association 223 W. Jackson Blvd, Ste 300 Chicago, IL 60606 Dear Ms. Cancino, This letter is in response to the Freedom of Information Act request received by the Chicago Infrastructure Trust on June 15, 2018 requesting: 1. All responses in their entirety t0 the ?Hare Express System Project Request for Proposals and Request for Qualifications, including but not necessarily limited to winning and non- winning proposals. 2. All reports, memorandums or any other documents that detail the criteria used to select the winning proposal for the 0 ?Hare Express System Project, including but not necessarily limited to evaluations of responses, policies, procedures and other such records that governed the review and selection of the winning proposal. 3. All reports, memorandums or any other documents that detail the criteria used to create the 0 ?Hare Express System Project. As to paragraphs 1-3, for available information regarding the OES Project, you may visit our website at The link will provide you with copies of the RFQ, the RFP, a list of respondents and a list of ?nalists. As to paragraph 1, please be advised 5 ILCS provides an exemption from disclosure for ?[p]proposals and bids for any contract, grant or agreement, including information which if it were disclosed would frustrate procurement or give an advantage to any person proposing to enter into a contractor agreement with the body, until an award or ?nal selection is made. Information prepared by or for the body in preparation of a bid solicitation shall be exempt until an award or ?nal selection is made.? The Boring Company and the City of Chicago have recently entered into the negotiating phase for the O?Hare Express System (OES) Project. Section of FOIA speci?cally exempts bids, proposal documents, evaluation criteria and evaluations until a ?nal contract is awarded. In this case, there has been no contract awarded for this project. Therefore, at this time the CIT is unable to provide any potentially responsive records. FILED DATE: 8/10/2018 4:20 PM 20180H10192 As to paragraphs 2 and 3, if you are seeking the RFP response evaluations, the evaluations are similarly protected under Please note bid evaluations are predecisional in nature and may also be protected under 5 ILCS In addition, because your request also asks for ?any other documents,? CIT is unable to discern what you are seeking and your request cannot be processed in its present form as it is overly broad, vague and burdensome. The FOIA provides in 5 ILCS 140/3 that requests for all records falling within a category shall be complied with unless compliance with the request would be unduly burdensome for the complying public body and there is no way to narrow the request and the burden on the public body outweighs the public interest in the information. Your FOIA request as it is currently written is vague and unduly burdensome to staff, resources, and its daily operations. Due to the broadness of the phrasing, the request could potentially include a myriad of documents that would be exempt from disclosure. As the Illinois Attorney General?s Public Access Counselor has noted (see 2017 PAC 47756, issued June 20, 2017), Illinois courts have held, request to inspect or copy must reasonably identify a public Chicago Tribune Co. v. Dept. of Financial and Professional Regulation, 2014 IL App (4th) 130427, par. 33. A FOIA request ?reasonably describes records if ?the agency is able to determine precisely what records are being requested.? v. Dept. ofJustice, 73 F.3d 386, 388 (DC. Cir. 1996) (quoting Yeager v. Drug. Enforcement Admin, 678 F.2d 315, 326 (DC. Cir. 1982)) Therefore, to the extent that you seek documents that have not been identi?ed and addressed in this response letter, it is necessary that your FOIA request be narrowed and clari?ed. If you would like further assistance in narrowing your request, please contact me and we will assist you. Otherwise, as explained above, we will be unable to ?irther respond to your request. If you wish to narrow your request, please submit a revised written request to our attention. CIT will take no further action or send you any further correspondence with regard to your request for ?any other documents? until it is narrowed in writing. If we do not receive your narrowed request within fourteen (14) calendar days of the date of this letter, your request for ?any other documents? will be denied. If you have any questions, please feel free to contact me at 312-809-8080 or via email. Thank you. Sincerely, Patricia Domingue Freedom of Information Officer FILED DATE: 8/10/2018 4:20 PM 2018CH10192 From: Subject: Date: To: Cc: Matt Topic matt@loevy.com BGA FOIA Denials re Boring Co June 26, 2018 at 4:42 PM FOIA@chicagoinfrastructure.org, Shannon.Leonard@cityofchicago.org Alejandra Cancino acancino@bettergov.org Greetings. I represent BGA in connection with the attached denials. We hope we can avoid litigation and ask that you respond to this email within a week. With regard to the first request, the exemption does not say "until a contract has been executed." Rather, it says "until an award or final selection is made." A recent Mayor's Office press release is titled "Mayor Emanuel Announces Company Selected to Build and Operate Chicago Express Service Between Downtown and O'Hare Airport," and states "Mayor Rahm Emanuel today announced selection of The Boring Company to build and operate an express service to O’Hare International Airport," which the Mayor used to claim that the decision "will keep the city on the cutting edge of progress, create thousands of good-paying jobs and strengthen our great city for future generations." The press release also makes clear that the City is now negotiating solely ("one-on-one") with Boring Co. And it explains that Boring "was one of two final teams selected to respond." With regard to the second and third requests, while deliberations about and evaluations of the bids may potentially be exempt, we disagree that the criteria used to evaluate the bids are the expression of an opinion as required under the deliberative process exemption, and we disagree that releasing the criteria would frustrate procurement or provide an advantage to a bidder. You have certainly not provided "a detailed factual basis for the application of any exemption claimed" as required by Section 9(a) of the FOIA statute. With regard to your undue burden claim, which seems to be focused solely on whether the records were reasonably described and does not explain what burden is involved or otherwise comply with Section 3(g), we disagree that "documents that detail the criteria used to select the winning proposal" or "documents that detail the criteria used to create" the project do not reasonably describe the records. While you cite to some fairly old federal cases purporting to require a "precise" description, the DOJ's current (and comprehensive) FOIA Guide explains that "the legislative history of the 1974 FOIA amendments indicates that a description of a requested record is sufficient if it enables a professional agency employee familiar with the subject area to locate the record with a 'reasonable amount of effort.'" We are quite confident a judge, and the residents of the City of Chicago for that matter, will find implausible your claim that you cannot reasonably identify the documents containing the criteria used to evaluate a tremendously expensive capital project like this. While we are not privy to your internal documents, we would expect, based on our experience with RFPs generally, FILED DATE: 8/10/2018 4:20 PM 2018CH10192 documents, we would expect, based on our experience with RFPs generally, there to be some kind of scorecard or other grading criteria used to score the bids. We look forward to a prompt response, but if we do not hear back in a week, we will proceed accordingly. -- Matthew Topic Loevy & Loevy 311 North Aberdeen, 3rd Floor Chicago, IL 60607 312-789-4973 (direct) 773-368-8812 (cell) matt@loevy.com www.loevy.com/attorneys/matthew-v-topic @mvtopic To check my meeting availability: https://freebusy.io/matt@loevy.com Encrypted communications available. The sender of this email is an attorney. The information contained in this communication is confidential, may be attorney-client privileged, may be attorney work product, and is intended only for the use of the addressee. It is the property of the sender. Unauthorized use, disclosure or copying of this communication or any part thereof is strictly prohibited and may be unlawful. If you have received this communication in error, please notify me immediately by return e-mail, and destroy this communication and all copies thereof, including all attachments. ACancino_BGA_Respon se.pdf FILED DATE: 8/10/2018 4:20 PM 20180H10192 mmsmucruu musr 35 EAST WACKER DRIVE . SUITE 1450 CHICAGO, IL 60601 '312-809-8080 Via email: July 13, 2018 Matt Topic Loevy and Loevy 311 N. Aberdeen Chicago, IL 60607 RE: BGA FOIA denial re Boring Company Dear Attorney Topic, We are in writing in response to your email dated June 26, 2018 in which you objected to the Chicago Infrastructure Trust?s response to Alejandra Cancino?s Freedom of Information Act request dated June 15, 2018. In your email, you assert that OIA exemption would not apply because the CIT and City of Chicago (?City?) have entered into negotiations with the Boring Company (?Boring?) regarding the O?Hare Express System Project (?Project?) and that you consider that action a ??nal selection.? For the reasons set forth below, we respect?illy disagree with your assertion. Section 7 of FOIA provides that the following documents are exempt from disclosure: ?[p]proposals and bids for any contract, grant or agreement, including information which if it were disclosed would frustrate procurement or give an advantage to any person proposing to enter into a contractor agreement with the body, until an award or ?nal selection is made. Information prepared by or for the body in preparation of a bid solicitation shall be exempt until an award or ?nal selection is made.? This Project was commenced in accordance with both State and City procurement laws. As such, the CIT and City issued a Request for Proposal for the Project which is posted at The RFP demonstrates that there has been no award or ?nal selection of the contractor for this Project and that exemption applies to Ms. Cancino?s OIA request. For instance, Section 1.6 refers to the current state of the Project, an ?Invitation to Exclusive Negotiations.? This current phase is ?irther described in Section 5 which provides that ?the proposer shall be entitled to a period of exclusive negotiations with the CIT and the City regarding the project, and the CIT and City will not negotiate with another Proposer regarding the Project.? Of note, Section 5.3 allows the CIT and City to revoke the invitation to exclusive negotiations and ?issue a new Invitation to Exclusive Negotiations to another Proposer.? Finally, Section 5.4 of the RFP provides that ?[a]pproval of the transaction by the City Council is a condition precedent to the execution of any Project Agreement executed at the conclusion of the negotiation phase.? The above terms, as with other language in the RFP, demonstrate that there has been ?no award or ?nal selection? for the Project as of yet. FILED DATE: 8/10/2018 4:20 PM 20180H10192 f" In circumstances where there has been no ?nal selection of a contractor, the Public Access Counselor agrees with the assertion of exemption by public bodies. 2016 PAC 43086 is analogous. In that matter, the PAC found that the public body ?was in the process of negotiating contract terms as a precondition to seeking approval from the District?s Board of Commissioners to enter into an agreement? and RFP responses were therefore exempt. This is exactly the Phase the CIT is in with Boring. Also, in 2013 PAC 26007, the PAC after describing the contract process utilized in the matter, found that because no contract or ?nal selection was made, the RFP documents were exempt from disclosure. Similarly, in 2012 PAC 19608, a requester sought proposals on a recycling program. The PAC found in favor of the public body, holding that, as there was no ?nal selection of a vendor, the exemption was properly asserted. Your email assertions ignore the use of the modi?er ??nal? (??nal selection?) in FOIA exemption Though the City has selected the Boring Company for exclusive negotiations, no final selection has been made. To properly interpret Section the modi?er ??nal? must be considered. A general rule of statutory construction is that every word of a statute must be given plain meaning and not ignored. Statutory language should not be made super?uous. See Murphy-Hylton v. Lieberman Management Services, Inc. 2016 11 120394 1125. (See also Arlington Park Racecourse LLC v. Illinois Racing Bat, 2012 IL App (lst) 103 743 1135 (2012) ?The prepositional phrase ?from that source? modi?es the preceding Carroll v. Community Health Care Clinic, Inc, 201 7 IL App (4th) [5084 7 ?28 {2017). ??Aggregate?, an adjective modifying the noun ?proportion??). Lastly, regarding your objection to the assertion that a portion the FOIA request was burdensome, the concern with the FOIA request was with the use of the term ?any other documents.? The language is not speci?c enough for the CIT to be able to precisely respond to the request. Without clarity, CIT would be guessing as to what documents are being sought. We remain committed to working with Ms. Cancino to narrow the language of the request. Please reach out to me to discuss and narrow this portion of the request. Thank you for your attention to this matter. Do not hesitate to call if you would like to discuss this further. Sincerely, ..- 4 ?i Patricia Dominghez Freedom of Information Of?cer