DuPage Co. (ECWd) -
College of DuPage Trustee Diane McGuire has once again shown the taxpayers of the district she has little concern towards transparency as she claims.
For months she has made accusations that information is being withheld, and local media has carried her drama to the pagers of their paper without any evidence of it being true, other than her word.
Time to turn the table over!
During the September special meeting trustee Wozniak read statements prepared by trustee McGuire, who was not present during that meeting. (1:56:15 and 2:12:44 points in the video)
I submitted a Freedom of Information Request for the statements prepared by McGuire and provided to Wozniak. I wanted them in order to compare McGuire's written words to those shared by Wozniak during the meeting.
COD responded to my FOIA claiming they could not locate any records that respond to my request. Considering the very information I was requesting was acknowledged during a board meeting and supposedly quoted from by Wozniak, I knew the response was not accurate. (COD Response)
I then filed another FOIA for the communications from the FOIA Officer and the two trustees that have the records being requested.
How interesting the response those two trustees provided was not that they do not have any record responsive to my request like I was told. Instead, McGuire takes a position that truly flies in the face of all logic, as if anyone is surprised by that.
With regard to the FOIA request from Kirk Allen, my response is as follows:
1) The Freedom of Information Act was intended to keep the official business of elected bodies available for public scrutiny.
2) Individual trustees do not constitute a "public body"...in fact, Board Policy 5-20 states that "trustees have authority for official Board action only when acting in concert as a Board of Trustees legally in session"
3) The Freedom of Information Act allows for exceptions to disclosure, including "notes...and other records in which opinions are expressed" 5 ILCS 140/7(I)(f)
4) I believe the communications between Trustee Wozniak and I are not subject to the FOIA request recently received from Kirk Allen.
Let's not forget this is the same person that went crying to the Daily Herald when the law was applied to her FOIA request, which I agree the law must be followed and applied equally for all FOIA requests. Sadly, the evidence I have in this case points to the law not being followed or applied properly.
Point by point on McGuire Claims
- When a trustee provides talking points that are read during a public meeting by another trustee those are public records that must be made available for public scrutiny.
- To claim a trustee is not a public body is nothing more than a smoke screen. I did not FOIA Diane McGuire. I sent my request to the Public Body for a record that was publicly recited during a meeting of the trustees legally in session.
- The exemption she claims is an overreach of the intent of the law. The comments provided to be read into the record no longer meet the exemption cited once they are discussed in a public meeting.
- What she believes and what the law is are two different things.
What is most telling in this case is the fact her own response to the FOIA officer confirms the record exists, contrary to what the FOIA officer claimed in the response to my request. That being the case, it was an improper denial.
I am responding to the FOIA request you forwarded to me last week, which requests copies of communications between myself and Trustee McGuire. Under the cases Quinn v. Stone and City of Champaign v. Madigan I do not believe that an individual trustee is a "public body" whose email communications or other records are subject to disclosure under the Freedom of Information Act. Therefore, to the extent such communications exist, they are not subject to disclosure.
Further, assuming such records were subject to FOIA requests, section 7(1)(f) of the FOIA act exempts from disclosure "Preliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated." Communications between trustees, even if subject to FOIA, would fall under this exemption.
I ask that your response to the FOIA request assert these and all other arguments against the legality of the request made.
Point by point on Wozniak Claims
One can only wonder if this is another effort by Cory Atkinson who has involved himself in current COD business. All indications are this legal posturing was not prepared by Wozniak but instead an attorney. Sadly, the cases they cite fall flat when compared to the facts.
- The first case he cites is laughable at best because the FOIA request was not submitted to an individual board member. It was properly submitted to the FOIA officer of the public body. A second grader can read the case and see that it does not apply in this case because I did not submit my FOIA to trustee Wozniak. (Quinn Case)
- The second case he cites, City of Champaign v. Madigan, is yet another example of an inability to comprehend the facts. Without going into a lot of detail, two key facts he fails to acknowledge with this case that clearly apply.
The appellate court stated "communications from an individual city council member's personal electronic devices do not qualify as "public records" unless they (1) pertain to public business, and were (2) prepared by, (3) prepared for, (4) used by, (5) received by, (6) possessed by, or (7) controlled by the "public body."
The records in question pertained to public business and were used by the public body in an open public meeting. It was used when it was quoted from by Trustee Wozniak in a legal meeting of the public body, thus meeting both the first required prong and the 4th listed by the courts.
Even more ironic with him citing that case, is the court ruled that the record in question was in fact subject to FOIA - "We affirm the portion of the circuit court's judgment in case No. 4-12-0751 affirming the Public Access Counselor's binding opinion."
His final attempt to claim it is exempt is yet another example of one who has not read much case law on FOIA, nor many opinions that refute his claim.
A request for review has been submitted to the Attorney General Public Access Counselor for them to make a determination as well as turned over to our legal counsel for possible court action.
All that aside, I find it amazing that Trustee McGuire, who has made it her public mission to claim others are not providing her information, takes the path of refusing to provide her talking points that she provided to another trustee to read into the record during a public meeting. Hypocrisy at its finest!
Major problem for COD!
The FOIA Officer was not honest in the response as clearly there was never a claim the records could not be located but rather that the two trustees were refusing to turn them over.