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May 18, 2022

FOIA lessons learned in dealing with the Orland Park Public Library –

By John Kraft & Kirk Allen

On August 9, 2015

Orland Park, IL. (ECWd) –
Just read a posting on “Fans of Megan Fox” facebook page and can verify the claims held within it in their dealings with the Orland Park Public Library (“OPPL”). It was an interesting read and is typical of what we see all the time in other public bodies who try fighting production of public records.
Enjoy reading:

CASE STUDY: How the OPPL has been forced to no longer illegally redact documents
August 8, 2015 at 10:52pm

Here is an illustration of just how much has changed at the Orland Park Public Library because of the pressure we put on this public body to comply with the Freedom of Information Act. These are recent legal invoices from the firm Klein Thorpe Jenkins (see below) that contain no redactions. Contrast this with how the OPPL used to produce documents like this, either with heavy CIA-level redactions (most of the page blacked out) or they’d flat-out refuse to produce the documents at all. These were just some of the many tactics the OPPL and its lawyers at the KTJ firm employed in a strategy to trample on the public’s First Amendment right to petition a public body and the rights guaranteed to the public under Illinois’ Freedom of Information Act (FOIA).
Remember that we had to sue the OPPL in chancery court because this public body was refusing to produce documents without heavy redactions. In violation of Illinois law, the OPPL would redact information that the law did not allow them to redact on documents or they would wholesale refuse to produce certain categories of documents and would dare us to see if we could do anything about that. Klein Thorpe Jenkins fought us tooth and nail over these redactions for almost two years. That law firm made a fortune by giving the OPPL bad legal advice that caused them to violate the FOIA law with illegal redactions…and then they billed tens of thousands of dollars to the OPPL while they advised them and encouraged them to keep violating the law. In a sad twist of irony, KTJ sends lawyers out to seminars to teach public library trustees about the FOIA statute and the Open Meetings Act, despite attorneys from Klein Thorpe Jenkins giving bad legal advice to the OPPL regarding the FOIA statute and the OMA that got the OPPL in a catastrophic mess from 2013 to 2015.
It took us suing them in chancery court in the Fox-1/Fox-2 lawsuits and the OPPL paying out a $55,0000 settlement in spring of 2015 for the OPPL to finally comply with the law and stop the illegal redactions and document obstruction. Remember that the OPPL went through several stages of obstruction and attack during “The Great FOIA War”:
1. First they would pretend they didn’t get a FOIA request and would refuse to produce documents on grounds that they claimed they never got a request (even though emails later produced showed Director Mary Weimar forwarding the very same FOIA request she claimed she never received on to other people). It took contacting the Attorney General’s Office of the Public Access Counselor (and showing them the emails the OPPL was forwarding showing they had received the FOIAs) for the OPPL to admit they had, indeed, received the FOIA requests.
2. Next, when they would be forced to admit they received something, they would needlessly delay production and ask for extensions…only to later claim they had no documents or it would be too burdensome for them to produce the documents. So, we’d have to go to the Attorney General to get them to order the OPPL to produce the documents.
3. Then, when they knew they had to produce the documents, the OPPL would wait until the last moment possible to produce them and would do a giant paper document dump and refuse to produce the documents electronically. We interpreted this as a giant “F-U”. We asked for them to send us documents electronically, but instead they would print out a large stack of paper (including duplicates and things we didn’t even ask for) and hide the documents we asked for in the haphazard stack…so that we’d have to spend hours combing through the mess of paper and sorting it out to find what we had asked for. We had to go to the Attorney General to complain about that and compel the OPPL to produce things electronically.
4. The OPPL would lie and say they didn’t have certain documents…but they didn’t keep track of what they lied about. So, a month later if we asked for the same document they claimed they didn’t have a month earlier, they’d magically produce it. They would forget that they said that this document didn’t exist before. So, either they hid it the first time or they fabricated it and back-dated it so that it really didn’t exist the first time we asked for it but it would magically appear the second or third time we asked for it.
5. About a month into FOIA-ing the OPPL, Library Director Mary Weimar tried to have Megan Fox and Kevin DuJan declared to be the same person, even though the FOIA statute says that even husbands and wives living in the same house are not the same person. Weimar tried to do this in order to have Fox & DuJan declared the same person and then further declared to be “recurrent requesters” so that she could limit the number and categories of documents that Fox & DuJan could ask her for.
6. Both the “they are the same person” and the “recurrent requester” attempts by Weimar failed. Fox & DuJan are writers and members of the news media so the “recurrent requester” provision of the FOIA statute (and the later-added “voluminous requester” provision) did not apply to them. Weimar lost again when the Attorney General decided against her.
7. Next, Weimar tried charging money for documents that DuJan had asked her for electronically…and she would try to charge him more for the documents than she charged other people who asked for the same documents. The Attorney General told her that she could not do that and that she had to produce the documents electronically at no charge.
8. In early 2014, there was a bizarre incident where Weimar flat-out refused to produce grant applications that the OPPL had submitted. The Attorney General had to be involved again and in February 2014, Weimar was forced to produce all the grant applications that she had refused to produce. Shortly after this, Weimar was removed as the OPPL’s Primary FOIA Compliance Officer and was replaced by Robin Wagner, who was promoted from being the Secondary FOIA Compliance Officer. The OPPL’s Finance Manager, Scott Remmenga, then took Wagner’s place as #2 FOIA officer.
9. One FOIA scandal that was never resolved with the bizarre assertion that the OPPL possessed no documents related to a 45-minute presentation and Q&A session that Director Mary Weimar and OPPL spokesman Bridget Bittman gave at the RAILS Burr Ridge videoconference center on 12/17/13. The OPPL insisted for months that it had no presentation or notes or speeches or anything for Weimar and Bittman’s appearance at this event (nicknamed “The Hatefest” because at the event Weimar and Bittman gave a lecture on “crisis communication” tactics to use against critics of public bodies who asserted their First Amendment rights to petition public bodies with grievances). The Hatefest was a seminar and rap session on how to scare away critics and lie to the media so a public body could twist the narrative to cover up problems or chill members of the public from criticizing the public body. Around 100 public employees from across the state attended this video conference at several RAILS locations, yet the OPPL claims to this day that it has no documents related to this event…where two OPPL staffers were featured speakers who talked for 45 minutes. Anyone who has ever known a public employee knows that these people do not speak for even 15 minutes without a big PowerPoint presentation, handouts, and prepared notes. During regular Board Meetings where she has to speak for 5 minutes or less, Director Mary Weimar always has notes in front of her that she reads from as she speaks. Yet, the OPPL to this day wants us to believe that Weimar and Bittman took no notes, presentations, PowerPoints, handouts, or other documents with them to a video conference where they were going to speak to 100 public employees around the state and field their questions for a prolonged period of time. The Attorney General finally weighed in on this and stated that no matter how unbelievable and ridiculous the OPPL’s claim was that it had no documents, there ultimately was nothing the AG could do if they stuck to the story that no documents from the Hatefest existed.
10. At some point in 2014, it was discovered that the OPPL had been using separate secret emails instead of the normal, publicly known emails. So there was a big fight over these secret emails and also the BCC lines on emails and attachments on emails, which the OPPL had refused to produce. The AG made them produce all the BCC lines going forward and magically the secret emails stopped being used.
11. The OPPL decided it would evade FOIA production by using voicemails to leave messages for people instead of emails…and then they tried to refuse producing the voicemails. The AG compelled production of the voicemails, which yielded a treasure trove of information that embarrassed the OPPL because in voicemails several people talked candidly about doing whatever they could to attack the members of the public who were asserting their First Amendment right to petition this public body. At the Hatefest video conference, notes from attendees show that using voicemail instead of email was one trick that was taught during the presentation…but the speakers at the Hatefest didn’t realize that voicemails are FOIA-able documents in the possession of public bodies.
12. The OPPL heavily redacted a great number of categories of documents, including its incident reports. It took almost two years to compel the OPPL to produce the incident reports unredacted. This is a similar fight to the battle over the OPPL’s law firm invoices. It took two lawsuits to get the legal invoices produced without illegal redactions and the threat of a third lawsuit to get the incident reports produced without illegal redactions. The OPPL in particular had been hiding the child porn incident report from proper production for two years as well as holding back all incident reports involving sex crimes that occurred in the library.
13. There was a big battle over the production of documents related to an OPPL employee running a private flower arranging business out of the library, using public resources and public email accounts to conduct her side business or sending public documents to herself at her supposedly private business email address. That required involvement of the AG and also suing the OPPL over the concealed documents.
14. In another example of the OPPL producing new documents or different documents if it was asked for the same documents more than once, in April of 2014 the OPPL magically produced a statement made by an employee that directly contradicted lies that the OPPL’s spokesman told to the news media in October and November 2013. Even though such a document was asked for back in October and November 2013, the OPPL held it back and pretended it didn’t exist. After Mary Weimar was removed as the Primary FOIA Compliance Officer, this damaging employee statement was produced. This is a good example of why you should ask for a public body for the same documents in different ways several months apart because there is a high likelihood that if you suspect a document exists then the second or third time that you ask for it, it will magically be produced out of thin air (if the public body did not have the foresight to just destroy it the first time you asked for it).
15. There was a big fight over documents related to the OPPL’s FaceBook account and also social media postings made by the OPPL’s spokesman. The OPPL had to be sued over these new types of documents. It’s clear that public bodies will struggle with social media for years to come because their instinct is that if something is not on paper or in email then they don’t have to produce it, but a public body’s social media accounts contain a great number of documents that are not visible to anyone but the person running the social media account. And all of those reports and invisible messages and the like are FOIA-able.
16. The OPPL fought production of videos and tried insisting that it could burn videos to DVDs that were then impossible to access as anything but DVD files (meaning that the public could not take the videos off the DVDs and upload them to YouTube or edit the videos in any way). After a long fight, the OPPL was ultimately forced to produce the video in MP4 or MOV format, as requested.
17. Another related fight was over the original format of other documents like posters, Excel spreadsheets, or Word docs. The OPPL insisted that it would only produce those as PDFs…but the Excel documents in particular had things hidden in them that would not be produced in the PDF. So, there was a battle to obtain the original format copies of documents and the OPPL was forced to comply with document production in the format requested in the FOIA submission.
18. The only instance of the Attorney General ever siding with the OPPL was when the AG said that if the OPPL did not keep a copy of a document in electronic format then it did not have to produce that document electronically, even if it was requested in electronic format and the OPPL had a copy machine that could scan to PDF as easily as it could copy a piece of paper.
19. On several occasions, the OPPL tried to claim that it could create a new document to avoid production of documents that it did not want to produce for some reason. For instance, instead of producing requested documents that might contain embarrassing information that the OPPL did not want the public to know about, the OPPL would attempt to pull a fast one and produce a spreadsheet or Word doc that contained only the information requested. But the AG compelled the OPPL to produce the original requested documents and not just this new tabulation spreadsheet or summary document that the OPPL created in an effort to evade FOIA production.
20. On many occasions, the OPPL would claim that document production was “too burdensome” but the AG would force the OPPL to explain why doing simple tasks was “too burdensome”. To win these battles, we had to list step by step what we thought the OPPL should have done in order to locate and produce the documents in question…and the OPPL would then be in the difficult position of explaining why it believed those simple steps were “too burdensome”. In an effort to hurt its critics, at one point the OPPL claimed to a reporter in the Chicago Tribune that it had hired “3 additional people” just to handle FOIA requests…and of course the reporter printed that, because reporters love to help public bodies and they like making members of the public look bad for asserting their First Amendment rights to petition and to use FOIA to investigate public bodies. Well, the OPPL didn’t really hire three people just to do FOIA production but since they told the newspaper that and it appeared in an article, from that point forward whenever they would claim something was too burdensome for them to do, we would cite that article and ask why they felt this was burdensome when they had two FOIA officers plus these three other mysterious people (cited in the Tribune article) to work on FOIA proaction…so with a total of five people on hand to do these tasks, how could they be burdensome?
21. A very effective tactic proved to be taking the FOIA disputes to the board meetings and grilling the OPPL Trustees on why the OPPL was refusing to produce certain documents. The Board members would refuse to answer or explain, but some would promise to “look into it”. A few days later, all the objections to document production would drop and the OPPL would produce the documents that they claimed they either didn’t have or wouldn’t produce before. Imagine that.
22. Bar none, the best way to handle FOIA disputes proved to be suing the public body. This was the most effective way of addressing the grievances. Sue them in chancery court. What we found was that by suing them, the library’s insurance coverage kicked in and its insurer hired a new law firm other than Klein Thorpe Jenkins to represent the OPPL in the FOIA lawsuits. The new law firm was professional, sensible, and sane where the KTJ firm was always emotional, bizarre, and obstructionist. Forcing the OPPL to have to listen to a fresh set of attorneys who had no financial advantage in prolonging disputes and racking up big legal bills by digging the OPPL deeper into a FOIA dispute was the key to resolving many longstanding problems. Since the new law firm would not make any profit from dragging things out and bleeding the public body by giving bad advice and digging them deeper into trouble, magically two years’ worth of disputes were able to be resolved and the OPPL finally — at long last — dropped its insistence that it could get away with redacting everything so the point of CIA levels of blacked-out secrecy.
That’s why it’s so remarkable to see these unredacted Klein Thorpe Jenkins invoices. Two long years’ worth of hard work went to obtaining things like this, along with two separate lawsuits in chancery court.
Public bodies like the OPPL seem to think that if they stonewall long enough that members of the public will just “get bored and go away”. We found an email in FOIA production where Mary Weimar said exactly just that. She really believed it, probably because most members of the public get bored and go away. Public bodies have no “Plan B” when the public does not get bored and go away in two weeks, however.
View the invoices at this link.

Photo from Megan Fox

Photo from Megan Fox

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