Shelby County State’s Attorney Has Outside Law Firm Handling FOIA Case; They Missed A Few Things –

Shelby Co., Ill. (ECWd) –

Cody Brands filed a Freedom of Information Act lawsuit against Shelby County and its dive team on December 23, 2024.

Mr. Brands is an associate member of The Coalition Opposing Governmental Secrecy (“COGS”), where ECW is a founding member. More information can be found at StopSecrecy.org. COGS’ attorneys assisting Mr. Brands are Adam Florek and Edward “Coach” Weinhaus of FOIASolved (FOIASolved.com).

A motion to dismiss the complaint was filed by a private law firm, HEYL, ROYSTER, VOELKER & ALLEN, P.C., specifically Keith Hill out of the Edwardsville office.

We do not know if the county insurance covers this legal expense or if they were hired as a special assistant state attorney.

Reading the motion it does appear there are some facts he may not have been advised of that will be most interesting moving forward.

“5. Plaintiff’s Complaint should be dismissed pursuant to Section 2-619 because (1) Defendant Shelby County Dive Team is not a “public body” as defined by FOIA; (2) even if Defendant Shelby County Dive Team was a “public body” subject to FOIA, the FOIA requests at issue were sent to an invalid email address and never received by any member of the Shelby County Dive Team; and (3) all requests sent to entities other than the Shelby County Dive Team were answered and all responsive documents were produced.” (emphasis added)

“8. The Shelby County Dive Team is a volunteer organization under the supervision of the Shelby County Public Safety Committee. While established by Resolution of the Shelby County Board, the only control the Shelby County Board exerts over the operations of the Shelby County Dive Team is the appointment of a commander by the Shelby County Board Chair.”

Is Shelby County Dive Team a public body?

While much of the local hysteria pushes a narrative they were not and or are not a public body, facts from a federal lawsuit might make any such claim to a court hard to explain. For example, The Shelby County Dive Team filed a federal lawsuit in the State of Michigan on 6/14/2011.  Within the complaint, paragraph one specifically states:

“Plaintiff, Shelby County Dive Rescue Team, is a division of the Shelby County government, located in Shelbyville, Illinois, and formed under the authority of the Illinois Water Rescue Act, 50 ILCS 755/1 et seq.”

A Federal Summons issued also indicates the Shelby County Dive Team is a Division of the Shelby County Government.

The former County Clerk confirmed as well, that the Shelby County Dive Team is part of the Shelby County Government.

The Federal Lawsuit resulted in a settlement, signed by the former Dive Commander and the County Board Chairman. The settlement states clearly, it was between “SHELBY COUNTY DIVE RESCUE TEAM, A DIVISION OF SHELBY COUNTY, its officers, directors, agents, employees, and benefactors (hereinafter “Shelby County”), and GREAT LAKE COACH SALES CO.”.

Couple the above points with a recent Attorney General opinion on a non-profit being considered a subsidiary to a public body in Madison County. Within the opinion, the AG points to the same case the attorney did in his motion to dismiss, however, a glaring omission is found in the motion to dismiss.

The case law cited in the AG opinion is from the Supreme Court (See paragraph 26).

“Courts have considered four primary factors in determining whether an entity is a “subsidiary body” of a public body: (1) the extent to which the entity has a legal existence independent of government resolution, (2) the degree of government control exerted over the entity, (3) the extent to which the entity is publicly funded, and (4) the nature of the functions performed by the entity.” Better Government Ass’n v. Illinois High School Ass’n, 2017 IL 121124, ¶ 26.” (emphasis added)

The case law cited in the Motion to Dismiss is from the Appellate Court (See paragraph 21). That begs the question, why point to a lower court’s ruling when the higher court made 4 points in their determination rather than the three by the lower court as to what test applies to determine a subsidiary of a public body?

“7. In determining whether an entity is a “subsidiary public body” under the Freedom of Information Act (FOIA), a court must consider: (1) whether the entity has a legal existence independent of government resolution; (2) the nature of the functions performed by the entity; and (3) the degree of government control exerted. Better Government Ass’n v. Illinois High School Ass’n, 2016 IL App (1st) 151356.”

For starters, the lawyer puts in quotes “subsidiary public body”, however, that is not an accurate quote from the court’s order that states “subsidiary body”.

The Supreme Court made 4 distinct points, worded slightly differently than the lower court case used by the county in their motion to dismiss.

• (1) the extent to which the entity has a legal existence independent of government resolution
• (2) the degree of government control exerted over the entity,
• (3) the extent to which the entity is publicly funded, and
• (4) the nature of the functions performed by the entity.”

The glaring omission in the motion to dismiss is the extent to which the entity is publicly funded.  Why no mention of the funding prong in the motion to dismiss?  Was that selective use of case law in hopes no one would notice the higher court’s words on that very case?  Considering the majority of their funding comes from the county budget we are confident the motion on that point will fail.

In regards to the FOIA’s being sent to an alleged invalid email, one in particular is of interest.  November 1, 2024, Cody Brands sent a FOIA to the email address, [email protected].

The motion to dismiss points out that an e-mail was sent directly to the Dive Commander on that date but then claims Austin Prichard was previously advised to only use his official dive team email and therefore he never received the request. There was no affidavit provided to support the claim it was never received.

If the Dive Team is not a public body or a subsidiary of a public body as is claimed in the motion, how on earth would they have an official email?

Or is the truth, as of September 24, 2024, the official email for the Dive Commander was the one used in the November 2024 FOIA request?  According to this FOIA response, [email protected] is in fact the email used by the Dive Commander.

That being the case, we believe the motion to dismiss on that point will fail as the FOIA request was sent to the very email provided by the county for the Dive Team Commander.

The claim that the county’s “only” control over the dive team is the appointment of the commander is frankly, patently false. The County Board and Public Safety Committee have a laundry list of oversight authorities, including adopting applicable tax levy for funding the Dive Team line item in the budget, approving budgets, expenditures, policies, etc.  To imply the only control is the appointment of the Commander is just not true.

The bigger questions we have are, why not just produce the requested information?  Why use taxpayer resources to fight a simple records request? Is the State’s Attorney not capable of handling a simple FOIA case?  Is this pushback tied to the forensic audit of the dive team expenditures that has yet to even be discussed in any public meeting?

We are looking forward to the court’s ruling on this motion.