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July 20, 2024

City of Marshall prevails in suit for access to recordings –

By John Kraft & Kirk Allen

On March 28, 2015


In the Coles County Courthouse yesterday, the Court determined that recordings for executive sessions of committees of the council should not be copied and given to elected officials in this case for the following reasons:

1) that plaintiff failed to show his “need” or a proper reason for copies

2) that there was a distinct difference between recordings and typewritten minutes

3) that the Open Meetings Act and Freedom of Information Act “did not specifically allow” their copying for elected officials

LeFever’s attorney presented very compelling arguments in the case but in the end, the city’s attorney managed to convince the court that there would be some “harm” if the recordings were to be released to the alderman.

What follows is my opinion on this decision, and the reasons I do not agree with the Court in this case.

First, an elected official has the duty to tender votes on specific issues, and he owes that duty to his constituents to be as knowledgeable as possible on everything he may be called upon to vote on. When trust in officials making up a committee of the public body has eroded, as with this city council, then their recommendations as a committee can no longer be trusted. If you remember back last year, illegal pay raises were discovered, but the council’s committee – including an alderman that could not legally hold that position, held several closed session meetings, a decision was made to approve and back-date the illegal pay raises. That was why this alderman wanted the recordings – and additionally because there were closed sessions in which he was the target of their discussions, which would have violated the Open Meetings Act. Through the course of this case, the city acknowledged a violation of the Open Meetings Act by admitting that they did not even record one of the closed session meetings as required by law.

The second reason I disagree is that the Court seemed to distinguish between recordings and other forms of records when the FOIA does not make any such distinction. The reasoning for the Court was that the Open Meetings Act instructed the public bodies to review the recording on a regular basis and then determine whether or not to release them to the public. That, determined the court, was the operative language in the Act and it did not permit copying of recordings for individual elected officials.

My disagreement comes when the Court (and both attorneys) failed to acknowledge that the Open Meetings Act specifically prohibits release “to the public” unless the public body authorizes it. The key words are “to the public“, and a sitting elected official of the public body is not considered “the public” – which is why closed sessions can be closed “to the public” but not the elected officials. Copies of closed session minutes were given to elected officials and recordings are consider no different in the eyes of the Freedom of Information Act.

Third is that I believe that by specifically prohibiting their release “to the public“, the legislature did not have the intent to prohibit their release to elected officials of the public body, because if they did there would have been no reason to specifically prohibit their release “to the public“.

There was considerable discussions of what happens if the minutes are publicized, and my response is that there are other laws on the books that would address that situation if it were ever to happen. So in the end, the Court made the determination based on the information presented and argued.

In the end, this was a fight for the right to access information and data to assist a sitting alderman in the performance of his duties. Nothing in the records or in the Court decision even insinuated this to be frivolous, unwarranted, unneeded, or anything of the sort, and I believe it stands a chance of being overturned in an Appellate Court should it be appealed, but that is not my decision to make.


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1 Comment
  • Warren J. Le Fever
    Posted at 09:50h, 28 March Reply

    Warren Le Fever

    I lost the suit filed for injunctive relief at the hearing in Charleston today. I think the best way for me to be is to announce what happened myself first rather than let the Advocate tell one version and the Watchdogs another (both were present at the hearing). I knew that the suit was lost very early in the proceedings when the Judge started asking questions of the sort that my attorney’s presentation didn’t cover. Either way, I’m glad it’s over because legal actions take up time and money and are stressful. The lawsuit started as a result of problems with the city attorney back when the Mayor had Chicago lawyer Jill Leka seeing if I could be sued or worse. I had been forced to hire an attorney to protect myself when that investigation was instigated by the Mayor. The decision to file the suit was my choice when I asked my attorney if it was possible to succeed and he looked into it and said yes. The Watchdogs DID NOT cause me to file the suit. They were interested in the proceedings, but had no role. Since I have been paying my attorney every time something was needed over a considerable length of time, the bills are already paid and I’m not facing a huge legal bill. The bad part about such matters is the long time legal actions take. It was the first time I had ever filed a lawsuit in my life and quite a learning experience. Everything done was new to me. When you live a fairly clean life you do not have to put up with lawyers and courts much. Do I like these court actions and hearings and the like? Not in the least. I used to do research for others doing actions and I am very aware that you never bet on what a judge will do. All you can do is hope your attorney is right. I have seen years ago several environmental cases go downhill that were thought to be slam dunks. My attorney thought we had a very good chance of winning up until the hearing began. Wrong. So be it.
    The above paragraph can be seen on my Facebook page I posted last night.

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