Hearing Date: 2/10/2020 10:30 AM - 10:30 AM Courtroom Number: 2102 Location: District 1 Court Cook County, IL FILED DATE: 10/11/2019 12:30 PM 2019CH11787 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION CHICAGO PUBLIC MEDIA, BETTER GOVERNMENT ASSOCIATION, Plaintiffs, v. VILLAGE OF LYONS, Defendant. ) ) ) ) ) ) ) ) ) ) FILED 10/11/2019 12:30 PM DOROTHY BROWN CIRCUIT CLERK COOK COUNTY, IL 2019CH11787 COMPLAINT NOW COME Plaintiffs, CHICAGO PUBLIC MEDIA and BETTER GOVERNMENT ASSOCIATION, by the undersigned attorneys, LOEVY & LOEVY, and bring this suit to overturn Defendant VILLAGE OF LYONS’s refusal, in willful violation of the Illinois Freedom of Information Act, to comply with Freedom of Information Act requests for federal subpoenas and search warrants, citing no exemptions, and in violation of the plain text of the statute and binding case law. In support of the Complaint, CHICAGO PUBLIC MEDIA and BETTER GOVERNMENT ASSOCIATION state as follows: 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 FILED DATE: 10/11/2019 12:30 PM 2019CH11787 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. 3. Under FOIA Section 1.2, “[a]ll records in the custody or possession 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 140/1.2. 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.” 5 ILCS 140/11(h). PARTIES 5. Plaintiff CHICAGO PUBLIC MEDIA (“CPM”) is a FOIA requester in this case. CPM serves the public interest by creating and delivering diverse, compelling content that informs, inspires, enriches and entertains. Through a broad range of media platforms—such as the nonprofit radio station WBEZ 91.5fm—it connects diverse audiences in its service area and beyond to one another. It helps them make a difference in our communities, our region, and our world. 6. Plaintiff BETTER GOVERNMENT ASSOCIATION (“BGA”) is a FOIA requester in this case. BGA is a non-partisan, non-profit corporation located in Cook County, Illinois. BGA’s mission is to promote integrity, transparency, and accountability in government by exposing waste, fraud, and corruption; to advocate for effective public policy; and to inform and engage the community. BGA was founded in 1923 to protect the integrity of the political process in Chicago. -2- FILED DATE: 10/11/2019 12:30 PM 2019CH11787 7. Defendant VILLAGE OF LYONS is a public body located in Cook County, Illinois. SEPTEMBER 26, 2019 FOIA REQUEST (CPM) 8. On September 26, 2019, CPM submitted a FOIA request to VILLAGE OF LYONS for “[a]ny and all subpoenas, search warrants or other requests for information to the village of Lyons from federal investigative agencies, including but not limited to the FBI or the U.S. Attorney’s Office for the Northern District of Illinois, since Jan. 1, 2017” and “[a]ny and all search warrant returns or other documents that federal agents have given to the Village of Lyons documenting the records or items that the agents removed pursuant to a search warrant executed since Jan. 1, 2017.” Exhibit A. 9. After taking an extension of time to respond, on October 10, 2019, through its attorneys and citing no FOIA exemptions, VILLAGE OF LYONS denied the request in its entirety claiming that “[t]he Government has requested the Village of Lyons provide no information concerning this matter.” (Emphasis in original.) Exhibit B. SEPTEMBER 26, 2019 FOIA REQUEST (BGA) 10. On September 26, 2019, BGA submitted a FOIA request to VILLAGE OF LYONS for “[a]ny and all subpoenas, search warrants, court files, investigative files, and all other documentation from the U.S. District Attorney’s Office or the Federal Bureau of Investigation received by the Village or any of its agents, officials, employees, or representatives since Sept. 18, 2019.” Exhibit C. 11. After taking an extension of time to respond, on October 10, 2019, through its attorneys and citing no FOIA exemptions, VILLAGE OF LYONS denied the request in its -3- FILED DATE: 10/11/2019 12:30 PM 2019CH11787 entirety claiming that “[t]he Government has requested the Village of Lyons provide no information concerning this matter.” (Emphasis in original.) Exhibit D. COUNT I - FAILURE TO PRODUCE RECORDS (CPM) 12. The above paragraphs are incorporated by reference. 13. VILLAGE OF LYONS is a public body under FOIA. 14. The records sought in CPM’s FOIA request are non-exempt public records of VILLAGE OF LYONS. 15. VILLAGE OF LYONS willfully violated FOIA by failing to produce the requested records. COUNT II – FAILURE TO PRODUCE RECORDS (BGA) 16. The above paragraphs are incorporated by reference. 17. VILLAGE OF LYONS is a public body under FOIA. 18. The records sought in CPM’s FOIA request are non-exempt public records of VILLAGE OF LYONS. 19. VILLAGE OF LYONS willfully violated FOIA by failing to produce the requested records. WHEREFORE, Plaintiffs ask 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 VILLAGE OF LYONS has violated FOIA; iii. order VILLAGE OF LYONS to produce the requested records; -4- FILED DATE: 10/11/2019 12:30 PM 2019CH11787 iv. enjoin VILLAGE OF LYONS from withholding non-exempt public records under FOIA; v. order VILLAGE OF LYONS to pay civil penalties; vi. award Plaintiffs reasonable attorneys’ fees and costs; vii. award such other relief the Court considers appropriate. Dated: October 11, 2019 RESPECTFULLY SUBMITTED, /s/ Matthew V. Topic ____________________________ Attorneys for Plaintiffs Matthew Topic Joshua Burday Merrick Wayne LOEVY & LOEVY 311 North Aberdeen, 3rd Floor Chicago, IL 60607 312-243-5900 foia@loevy.com Attorney No. 41295 -5- FILED DATE: 10/11/201912:30 PM 2019CH11787 Dan Mihalopoulos From: Dan Mihalopoulos Sent: Monday, October 07, 2019 12:05 PM To: Cc: Matt Topic Subject: Fw: WBEZ FOIA request Mr. Sheahan, I sent this request to you more than 5 business days ago. Please advise me immediately if you received this request because we sent it to the email given on the village website and have not received the response that is required by the law by now. If you have any questions, please call my cell 312-404-8670. Sincerely, Dan From: Dan Mihalopoulos Sent: Thursday, September 26, 2019 1:28 PM To: Subject: WBEZ FOIA request Tom Sheahan FOIA Of?cer Village of Lyons E-mail: To Whom It May Concern: This is a request for public information under the Freedom of Information Act. Please provide copies of the following documents: Any and all subpoenas, search warrants or other requests for information to the Village of Lyons from federal investigative agencies, including but not limited to the FBI or the US. Attorney's Of?ce for the Northern District of Illinois, since Jan. 1, 2017. Any and all search warrant returns or other documents that federal agents have given to the Village of Lyons documenting the records or items that the agents removed pursuant to any search warrant executed since Jan. 1, 2017. We look forward to receiving your response within ?ve business days. If you have any questions about this request, please call me at cell 312-404-8670 or message me at dmihalopoulos@wbez.org. Sincerely, Dan Mihalopoulos 1 Exhibit A FILED DATE: 10/11/201912:30 PM 2019CH11787 Reporter WBEZ-Chicago Public Media FILED DATE: 10/11/201912:30 PM 2019CH11787 Dan Mihalopoulos From: Dan Mihalopoulos Sent: Thursday, October 10, 2019 5:05 PM To: Thomas Sheahan; Cc: Doreen Norris; Matt Topic Subject: RE: Attached Image Marty, thanks for your call the other day. Is the Village planning to send that information yet today? Best, Dan From: Dan Mihalopoulos Sent: Monday, October 07, 2019 3:09 PM To: Thomas Sheahan Cc: Doreen Norris Matt Topic Subject: Re: Attached Image The request is limited in scope and substantially similar, if not identical, to the other media requests, so I am at a loss to understand why the Village of Lyons would request an extension beyond Thursday, which will mark 10 business days since my original request was filed at the appropriate email address. Given that other media have made essentially the same request, and they made their requests at virtually the same time I did, if not later than Sept. 24, I am not granting an extension beyond Thursday. From: Thomas Sheahan Sent: Monday, October 7, 2019 2:19 PM To: Dan Mihalopoulos; Cc: Thomas Sheahan; Doreen Norris Subject: FW: Attached Image Marty, This must have slipped through the cracks as we were inundated with FOIAS. I've asked Dan for an extension. Please handle. TS From: Sent: Monday, October 07, 2019 1:57 PM To: Thomas Sheahan Subject: Attached Image FILED DATE: 10/11/2019 12:30 PM 2019CH11787 From: "Martin T. Burns" Date: October 10, 2019 at 6:50:00 PM CDT To: 'Dan Mihalopoulos' Cc: "'tsheahan@villageoflyons-il.net'" Subject: FOIA/Village of Lyons Dear Mr. Mihalopoulos: This firm represents the Village of Lyons (the “Village”) on certain assigned matters. On behalf of the Village, I am writing to provide a response to your September 26, 2019, e-mail request for certain public records pursuant to the Illinois Freedom of Information Act (the “Act”). In response to your request, the Village FOIA Officer has provided a written statement which is attached hereto. Should you disagree and wish to appeal the Village’s response, you may appeal to: Public Access Counselor, Office of the Attorney General, 500 South 2nd Street, Springfield, IL 62706, Fax: 217-782-1396, e-mail: publicaccess@atg.state.il.us. You may also seek judicial review under Section 11 of the Act. If you have any further questions, please don’t hesitate to call. Martin T. Burns Burke Burns & Pinelli, Ltd. 70 West Madison Street Suite 4300 Chicago, Illinois 60602 Tel: (312) 541-8600 Fax:(312) 541-8603 Email: mtburns@bbp-chicago.com Website: www.bbp-chicago.com __________________________ Exhibit B 10/11/2019 Loevy & Loevy Mail - Fwd: FOIA/Village of Lyons The information contained in this e-mail message is from the law firm of Burke Burns & Pinelli, Ltd. and may be privileged, confidential, and protected from disclosure. If you are not the intended recipient, any further disclosure or use, dissemination, distribution, or copying of this message or any attachment is strictly prohibited. If you think that you have received this e-mail message in error, please delete the e-mail, and either e-mail the sender at the above address FILED DATE: 10/11/2019 12:30 PM 2019CH11787 or notify us at our telephone number (312) 541-8600. 2 attachments ATT00001.htm 1K FOIA Statement 10 10 19.pdf 15K FILED DATE: 10/11/201912:30 PM 2019CH11787 You have requested information concerning a subpoena served on the Village of Lyons. The Village of Lyons is cooperating completely in any Government Investigation. The Government has requested The Village of Lyons provide No Information concerning this matter. VILLAGE OF LYONS F.O.I.A. OFFICER FILED DATE: 10/11/2019 12:30 PM 2019CH11787 ---------- Forwarded message --------From: Casey Toner Date: Thu, Sep 26, 2019, 2:24 PM Subject: FOIA request To: Thomas Sheahan Cc: Susan D. Steffy , Martin T. Burns , Dear FOIA officer, This is Casey Toner with the Better Government Association with a request for public records under the Illinois Freedom of Information Act. I am asking for copies of the following: +Any and all subpoenas, search warrants, court files, investigative files and all other documentation from the U.S. District Attorney's Office or the Federal Bureau of Investigation received by the Village or any of its agents, officials, employees or representatives since Sept. 18, 2019. Please make these records available for my inspection under state law before 3 p.m. Oct. 3, 2019, as required by state law. If you have any questions or concerns regarding this request, please call me at (312) 386-9201 or my cell phone at (773) 957-2068. Thank you for your prompt attention to this matter. Thank you, -Casey Toner Better Government Association reporter Office: (312) 386-9201 Cell: (773) 957-2068 Exhibit C FILED DATE: 10/11/2019 12:30 PM 2019CH11787 ---------- Forwarded message --------From: Martin T. Burns Date: Thu, Oct 10, 2019, 6:50 PM Subject: FOIA/Village of Lyons To: Casey Toner Cc: tsheahan@villageoflyons-il.net Dear Mr. Toner: This firm represents the Village of Lyons (the “Village”) on certain assigned matters. On behalf of the Village, I am writing to provide a response to your September 26, 2019, e-mail request for certain public records pursuant to the Illinois Freedom of Information Act (the “Act”). In response to your request, the Village FOIA Officer has provided a written statement which is attached hereto. Should you disagree and wish to appeal the Village’s response, you may appeal to: Public Access Counselor, Office of the Attorney General, 500 South 2nd Street, Springfield, IL 62706, Fax: 217-782-1396, e-mail: publicaccess@atg.state.il.us. You may also seek judicial review under Section 11 of the Act. If you have any further questions, please don’t hesitate to call. Martin T. Burns Burke Burns & Pinelli, Ltd. 70 West Madison Street Suite 4300 Chicago, Illinois 60602 Tel: (312) 541-8600 Fax:(312) 541-8603 Email: mtburns@bbp-chicago.com Website: www.bbp-chicago.com __________________________ The information contained in this e-mail message is from the law firm of Burke Burns & Pinelli, Ltd. and may be privileged, confidential, and protected from disclosure. If you are not the intended recipient, any further disclosure or use, dissemination, distribution, or copying of this message or any attachment is strictly prohibited. If you think that you have received this e-mail message in error, please delete the e-mail, and either e-mail the sender at the above address or notify us at our telephone number (312) 541-8600. Exhibit D 10/11/2019 FILED DATE: 10/11/2019 12:30 PM 2019CH11787 FOIA Statement 10 10 19.pdf 15K Loevy & Loevy Mail - Fwd: FOIA/Village of Lyons FILED DATE: 10/11/201912:30 PM 2019CH11787 You have requested information concerning a subpoena served on the Village of Lyons. The Village of Lyons is cooperating completely in any Government Investigation. The Government has requested The Village of Lyons provide No Information concerning this matter. VILLAGE OF LYONS F.O.I.A. OFFICER