McHenry Co. (ECWd) -
This week under the Big Top Circus tent known as Algonquin Township, the Gooch & Miller show is now front and center.
Last week Thomas Gooch, who is representing Bob Miller, the former Township Road District Highway Commissioner who has invoked his 5th Amendment right against self-incrimination, has thrust himself and his client into our FOIA lawsuit.
Gooch has filed a Petition for Intervention pursuant to 735 ILCS 5/2-408(a) or the alternative, 735 ILCS 5/2-408(b) for Intervention as a Matter of Discretion. We encourage everyone to first read his Petition to better follow the circus acts explained below.
First Magic Act - Center Ring
Gooch is performing a true high wire act on this one. Gooch claims the current Road District is unable to assert the attorney-client privilege on behalf of Robert Miller.
Well Duh? We agree because Miller is not the client.
Privilege stays with the client, which in this case is the Algonquin Road District and such privilege is controlled by Andrew Gasser, the elected Highway Commissioner.
"We note that the attorney-client privilege can be waived, but only by the client. This is so because the privilege belongs to the client, and not to the attorney." (People v. Mudge)
Gooch then states only Miller can assert such a privilege and has informed attorney Kelly that he does assert the aforesaid privilege over any work product in Kelly's possession or the possession of Kelly's firm.
It will be most interesting to see this move through the judicial system of McHenry County as attorney-client privilege is not taken lightly in the legal community, or at least with most attorney's. We do find it interesting that Gooch has concerns of attorney-client privilege regarding Miller in light of his actions in this Illinois Supreme Court case.
"We assume, arguendo, that defendant's conversation with attorney Gooch was privileged at the time it occurred. We also assume that the privilege remained intact despite the disclosure by Gooch to defendant's sister, her subsequent disclosure to the police, and the recording of that statement in the written report."
While Miller and others in Algonquin Township government invoke their 5th Amendment right against self-incrimination, they should realize they can't hide public records through legal posturing. In fact, their attorneys may be well advised to do some research on the matter before facing potential sanctions by judges who take our laws seriously.
"It is a well-established principle under Illinois law that the assertion of privilege is the exception; not the rule. See Golminas v. Fred Teitelbaum Const. Co., 112 Ill.App.2d 445, 448-449 (2nd Dist. 1969); [Waste Management, Inc. v. Int’l Surplus Supply Lines Ins. Co., 144 Ill.2d 178, 190 (1991)]. (“[I]n Illinois we adhere to a strong policy of encouraging disclosure, with an eye toward ascertaining the truth which is essential to the proper disposition of a lawsuit.” )"
Magic Act #1
Gooch acknowledges his client Bob Miller will be adversely affected by granting Hanlon's motion to require Kelly to turn over records that are the property of the Road District.
"There is no question that Robert Miller will be adversely affected by a granting of this Motion without an opportunity to be heard as it will invade the attorney-client privilege existing by and between Robert Miller and attorney James P. Kelly."
So how do we cross "an eye toward ascertaining the truth which is essential to the proper disposition of a lawsuit" with Gooch's position that a former elected official will be adversely affected? We agree with Gooch, his client Bob Miller will be adversely affected but not because of any alleged privilege being broken, as none exists, but rather the exposure of public records that will tell the real story of his actions as Road District Highway Commissioner.
Slick language Mr. Gooch. He now is trying to invoke not the standard attorney-client privilege but the work-product privilege, which is not what is at issue in our FOIA case. It's called muddying the waters and it appears Gooch is a master of it.
Juggling Act #2
In Gooch's efforts to stop records from being provided to the Road District under our FOIA request, he asserts the Road District has no duty to take steps to seek out and recover records not under their control being the personal work product of James Kelly.
Pointing to Kelly's "work product" and ignoring all other records in his possession tells us he knows this attempt to keep records secret is weak at best. The Road District does, in fact, have an obligation to seek out and recover public records, not in their possession, contrary to Gooch's attempt to imply otherwise.
5 ILCS 140/2 (c) "Public records" means all records, reports, forms, writings, letters, memoranda, books, papers, maps, photographs, microfilms, cards, tapes, recordings, electronic data processing records, electronic communications, recorded information and all other documentary materials pertaining to the transaction of public business, regardless of physical form or characteristics, having been prepared by or for, or having been or being used by, received by, in the possession of, or under the control of any public body.
5 ILCS 140/7)(2) A public record that is not in the possession of a public body but is in the possession of a party with whom the agency has contracted to perform a governmental function on behalf of the public body, and that directly relates to the governmental function and is not otherwise exempt under this Act, shall be considered a public record of the public body, for purposes of this Act.
Magic Act #3
"Obviously Robert Miller's privilege will be invaded by any court order entered when Miller does not have the ability to first address and advocate his position."
Miller does not have any privilege in our opinion and that is based off the case law we have read on the matter. The attorney-client privilege belongs to the client, who in this case is the Road District. Only the elected official in charge of the Road District can exercise such a privilege and since Miller is no longer that official, he has no privilege.
"Judge Holderman found that the attorney-client privilege does not extend to communications with former employees. See Barrett Indus. Trucks, Inc. v. Old Republic Ins. Co., 129 F.R.D. 515 (N.D.Ill. 1990);
"Displaced managers may not assert the privilege over the wishes of current managers, even as to statements that the former might have made to counsel concerning matters within the scope of their corporate duties. See Brief for Petitioner 11; Tr. of Oral Arg. 26. See generally In re O.P.M. Leasing Services, Inc., supra, at 386; Citibank v. Andros, supra, at 1195; In re Grand Jury Investigation, 599 F.2d 1224, 1236 (CA3 1979); Diversified Industries, Inc. v. Meredith, 572 F.2d 596, 611, n. 5 (CA8 1978) (en banc).5 "
Clown Act- #4
I don't think I have ever laughed so hard as when I read this last claim by Gooch.
"The Road District appears to be embarking upon an expedition whereby it is using a FOIA request as an excuse to gather anything useful to the Road District and other litigation when all the Road District is required to do is, subject to exceptions and exemptions, produce what records it has to the Plaintiff in the above-captioned litigation"
No, Mr. Gooch, the Road District is embarking upon an expedition to comply with the Freedom of Information Act request we submitted for specific records. To date, we have been patiently awaiting compliance of that request as it was not part of our FOIA lawsuit but rather a separate and distinct request. It would appear that request has created a massive amount of concern for all those who were previously in charge of abusing the taxpayers of Algonquin Township through their actions while in charge of that unit of Government. I don't recall ever seeing such an effort to withhold public records.
Gooch's closing statement tells us all we need to know and may even become problematic in Millers' refusal to turn over all records requested by his predecessor.
"WHEREFORE your Petitioner and proposed Intervener, ROBERT MILLER, prays this Honorable Court to bar the furnishing of any the aforesaid documents described herein to Attorney Robert Hanlon or any other person from JAMES KELLY based on the attorney~client privilege existing between JAMES KELLY and ROBERT MILLER."
Anything short of Miller proving that he has a legal and identical interest as the Road District puts Miller in a position of weakness. Not a good place to be while on a high wire under the Big Top.
But then again, this is a Circus Act under the Big Top, McHenry County.