Professional Documents
Culture Documents
Plaintiff brings this Complaint, pursuant to 5 ILCS 140/11, against the City
Summary
politics/emanuel-responds-to-ugly-testimony-by-water-management-employees/;
http://chicago.cbslocal.com/2018/01/15/emanuel-defends-new-water-commissioner-
amid-racist-culture-complaints/.
when racist email messages exchanged by the top officials at the Water Department
racist emails and related records, but the City refuses to produce them.
information.
election year.
Parties
Illinois and is bound by the laws of the State of Illinois, including the Freedom of
Information Act.
12. The requests sought documents from the City of Chicago, Illinois.
Background
14. The Freedom of Information Act codifies the public policy of the State
and complete information regarding the affairs of government. See 5 ILCS 140/1
-2-
("The General Assembly hereby declares that it is the public policy of the State of
Illinois that access by all persons to public records promotes the transparency and
this Act.
16. Since the public pays the salaries and elects the officials, the public
has a right to review the records created by public bodies and monitor the
140/1 ("Such access is necessary to enable the people to fulfill their duties of
discussing public issues fully and freely, making informed political judgments and
17. The Freedom of Information Act establishes that the records in the
18. The Freedom of Information Act, therefore, gives the public the
presumptive right to inspect all municipal records: "[a]ll records in the custody or
ILCS 140/1.2.
19. The Freedom of Information Act requires the City to establish, by clear
public body that asserts that a record is exempt from disclosure has the burden of
-3-
COUNT I
21. Plaintiff issued a Freedom of Information Act request seeking copies of:
"1. any and all complaints and e-mail correspondence that were produced to the
City of Chicago Office of the Inspector General, involving, pertaining to, or relating
to any of the following persons, and; 2. any and all documents related to the
22. The City of Chicago initially responded asserting that there are no
23. The assertion that there are no responsive records is false and the City
senior police official William Bresnahan, former Alderman John Pope, Alan Stark,
Paul Hansen, Eduardo Salinas, and Joseph Lynch are among the Water
https://www.nbcchicago.com/news/local/Chicago-Water-Department-Takes-Action-
Against-Employees--471702504.html.
-4-
25. The City subsequently responded that it needed additional time to
consult with another unnamed public body or another component of a public body.
26. Seven days thereafter, the City responded asserting that the records
responsive to Request No. 1 are exempt from FOIA under the Illinois State Officials
and Employees Ethics Act, because copies of the records were sent to the City
27. Non-exempt materials that were copied and sent to the City's Inspector
General do not become exempt any more than subsequently sending a business
document to an attorney renders the document privileged. See CNR Invest., Inc. v.
Jefferson Trust & Savings Bank, 115 Ill.App.3d 1071, 1076 (3rd Dist. 1983) ("The
28. The documents evidencing racism within the Water Department were
the Medical Studies Act, Illinois courts have held that a document must specifically
the ordinary course of a hospital's business are not privileged, even if they are later
-5-
30. The requested records were not created solely for the Inspector
General's investigation and are not exempt from disclosure merely because copies
31. Moreover, the assertion that copies in the possession of the Inspector
32. While the City claims that 5 ILCS 140/7.5(h) exempts records from
disclosure, the underlying statute (the State Officials and Employees Ethics Act)
provides that investigative files lose any protection if a report is filed finding
violations. See 5 ILCS 430/20-95(b) ("If the Executive Ethics Commission finds that
a violation has occurred, the entire record of proceedings before the Commission,
the decision and recommendation, and the response from the agency head or
33. Here, the Inspector General issued findings that violations occurred
34. After the report was issued, the entire record held by the Inspector
General became subject to FOIA, and any limitations on disclosure were waived
under the terms of the State Officials and Employees Ethics Act.
35. The City's assertion that all the racist documentation was turned over
1The Inspector General is part of the City government and the City cannot self-create a new
exemption to FOIA by handing copies of documents subject to FOIA to another department.
-6-
36. The Inspector General said that the Law Department would not
provide access to all the emails: "Still, Ferguson's report raised questions about
whether he found all the troubling emails. Ferguson said the mayor's Law
Department imposes restrictions that do not allow 'unfettered access to city emails,'
http://www.chicagotribune.com/news/local/politics/ct-chicago-water-department-
report-met-0718-20170717-story.html.
37. The City cannot rely on the State Officials and Employees Ethics Act
38. The City’s attempt to shield the documents from disclosure is part of
an effort to avoid scrutiny of the decision to allow top officials who engaged in racist
39. Not only has the City failed to establish by clear and convincing
evidence that any exemption applies to withholding records about the institutional
racism within the Water Department, the City has also waived any such exemption
by disclosing the same or similar documents to the media: "Not long after the suit
was filed, emails turned over to the Tribune as part of an open records request cast
light on the scope and offensiveness of racist, sexist and anti-gay slurs by politically
http://www.chicagotribune.com/news/local/politics/ct-met-chicago-water-
department-racist-emails-20180416-story.html.
-7-
40. The City cannot selectively provide The Chicago Tribune with
41. Finally, the City waived any claim of exemption to disclosure when the
Mayor repeatedly cited and identified the employees and racist emails. See
https://chicago.suntimes.com/chicago-politics/emanuel-responds-to-ugly-testimony-
by-water-management-employees/; http://chicago.cbslocal.com/2018/01/15/emanuel-
defends-new-water-commissioner-amid-racist-culture-complaints/;
https://chicago.suntimes.com/news/emanuel-commitment-to-changing-water-
management-hate-filled-culture-questioned/.
42. In response to Request No. 2 in the February 12, 2018 FOIA, the City
claimed an inability to discern the records that were requested and produced only
the resignation letters for the listed employees. (Exhibit 4, 2/28/2018 Response.)
43. The City's assertion that the public must specifically identify
individual records, when the public does not have access to these very same records,
is without merit.
45. The City purported to force these employees to leave its employment
and was able, from this request, to identify the resignation letters.
46. The City, however, wants to avoid disclosing documents which should
-8-
47. The City cannot demonstrate by clear and convincing evidence that it
cannot understand the request or that the production of the records constitutes an
undue burden.
production of the records requested in the February 13, 2018 FOIA; (2) imposition of
a civil penalty against the City of Chicago of not less than $2,500 nor more than
$5,000 for each occurrence; (3) an award attorneys' fees and costs; and, (4) such
COUNT II
Chicago on April 9, 2018 seeking: (1) the personnel file for Michael Dwyer, (2) racist
emails to and from Michael Dwyer, (3) documents about the employment departure
of Michael Dwyer, and, (4) complaints and disciplinary actions about Michael
51. On April 23, 2018, the City responded that it would only provide
FOIA.)
52. The City redacted the personnel and disciplinary records, citing the
-9-
53. The Freedom of Information Act limits "private information" to things
like social security numbers, personal financial information, and home and personal
54. The City, however, redacted far more than private information, and
55. The City redacted the personnel and disciplinary records, removing
any information about what Michael Dwyer did, why he was disciplined, and why
56. The City's redactions willfully violate the limitations in FOIA and are
improper. The City wants to avoid disclosing information that might be politically
embarrassing, but there is no basis for the redactions under Illinois law.
57. The City also asserted that providing Dwyer's racist emails would be
58. The City, however, already located racist emails sent or received by
was-butt-of-some-racist-city-emails-in-chicago/article_31db53c6-0d00-5f74-9f81-
d281015256f0.html.
59. The City cannot avoid producing the documents it has readily available
or place an additional burden on the requestor to guess about Dwyer's use of racist
language.
60. Given that the City already possesses racist emails, its assertion that
- 10 -
WHEREFORE, Plaintiff prays for: (1) an order compelling the immediate
production of the emails requested in the April 23, 2018 FOIA; (2) an order
records requested in the April 23, 2018 FOIA; (3) imposition of a civil penalty
against the City of Chicago of not less than $2,500 nor more than $5,000 for each
occurrence; (4) an award attorneys' fees and costs; and (5) such further relief as
COUNT III
Chicago on May 31, 2018 seeking: (1) Records reflecting the post-termination
Izban, Paul Hansen, Irene Caminer, and Lucy Pope Anderson, (2) the personnel
files for William Bresnahan, Jennifer Izban, Paul Hansen, Irene Caminer, and Lucy
Pope Anderson, and, (3) complaints and disciplinary actions involving Anthony
Nguyen, Barrett Murphy, William Bresnahan, Jennifer Izban, Paul Hansen, Irene
63. On June 14, 2018, the City responded that it did not maintain the
records sought in request number 1, that request numbers 2 and 3 were unduly
burdensome. (Exhibit 10, 6/14/2018 FOIA.) The City stated that it would not
- 11 -
64. While it is difficult to fathom how request number 3 could possibly be
unduly burdensome unless the employees of the City were the subject of repeated
complaints and discipline, the request was narrowed to alleviate the City's
purported concern.
65. On June 22, 2018, a narrowed FOIA request was submitted to the
City, requesting (1) information from the personnel files of William Bresnahan,
Jennifer Izban, Paul Hansen, Irene Caminer, and Lucy Pope Anderson within the
last 7 years, and, (2) complaints and disciplinary actions involving Anthony
Nguyen, Barrett Murphy, William Bresnahan, Jennifer Izban, Paul Hansen, Irene
Caminer, and Lucy Pope Anderson from the last 7 years. (Exhibit 11, 6/22/2018
Narrowed FOIA.)
66. The City claimed that this narrowing was sufficient to alleviate its
business days. 5 ILCS 140/3(d). The request may be extended for an additional 5
68. The City, however, has still not produced the records, nor has the City
provided written notice as to why and how long the production will take. This
City indicted that its efforts to redact information would take an indeterminate
amount of time.
- 12 -
70. The only way the City's redactions could take months is if the City is
like social security numbers, personal financial information, and home and personal
Counsel's office, the Department of Water Management FOIA offices have been
redacting information that would show the employees committed reprehensible acts
and that the City was aware of complaints about this conduct, but did nothing.
73. The City's actions are a willfull violation of the limitations in FOIA
politically embarrassing, but there is no basis for the redactions under Illinois law.
production of all of the documents, without redaction, sought in the narrowed June
22, 2018 FOIA; (2) an order prohibiting the City from redacting anything other than
the information specifically listed 5 ILCS 140/7(1)(b) and 5 ILCS 140/2(c-5); (3)
imposition of a civil penalty against the City of Chicago of not less than $2,500 nor
more than $5,000 for each occurrence; (4) an award attorneys' fees and costs; and (5)
- 13 -
PLAINTIFF HENDERSON
PARKS, LLC
- 14 -