What Is the DeKalb City Attorney Talking About?

In the course of a year I submit to the city at least a half-dozen requests under the Illinois Freedom of Information Act (FOIA). The vast majority of requests for information are filled as a matter of routine. Every once in awhile, though, the city denies something I’ve asked for by citing an exemption under FOIA, in which case I ask the Public Access Counselor (PAC) of the Office of the Attorney General to review the decision.

The review process naturally feels a bit combative. Of course I’ve asked for information I feel entitled to under the law, while the city obviously has concluded that its reasons for denial are solid. The PAC acts as referee.

But if the Request for Review under FOIA can get a little contentious, the same process under the Open Meetings Act (OMA) almost surely will be. With FOIA, it’s usually a matter of either being vindicated in the denial or being told to release information. With OMA, the PAC is investigating an allegation of lawbreaking for which penalties can apply.

A video recording from the last city council meeting alerted me to the PAC review of an alleged OMA violation by the City of DeKalb in October 2012. Since you probably will not hear about it anywhere else, I want to tell you.

Even more importantly, I would like to compare the facts as I understand them, to the city attorney’s report of the matter.

Below is the procedure whereby a possible Illinois Open Meetings Act (OMA) violation is handled by the Public Access Counselor (PAC) of the Office of the Attorney General.

1. An alert citizen sends a letter and supportive documentation to the PAC, requesting review of an action or actions made by a public body that may have violated OMA.

2. The PAC decides whether or not further investigation of the allegations is warranted and notifies the public body and the citizen of its decision.

3. If the PAC does decide to investigate the allegations, the public body gets an opportunity to respond to them.

4. The citizen likewise gets an opportunity to respond to the public body’s response.

5. The PAC deliberates and issues an opinion about whether a violation or violations of OMA have occurred.

Remedies, penalties and court appeals are also possible, but to my knowledge they are rare, in DeKalb at least.

The following is my take on the recent, specific review of a possible OMA violation mentioned earlier. I’m using italics to differentiate this summary from the other content in this post.

Mark Charvat asked the PAC for a review of a possible OMA violation in October 2012 because he had attempted to access an agenda at the City of DeKalb website and could not. Specifically, he said he was aware that the city had amended the October 22 agenda to include a proclamation but that it failed to post an amended agenda online per OMA. The PAC decided the allegation warranted further investigation.

The city’s position was that Charvat was using “bad links” to try to access the agenda (due to the city’s ostensible and in any case ironic efforts to provide better access to information by changing the links). The city contended that had Charvat gone to the website instead of using old bookmarked links, he would have found the October 22 agenda. Charvat countered that he did in fact try the website itself and he refused an “opportunity” to withdraw his OMA Request for Review.

Aside from the question of functional links, it came out during the course of the review that the agenda was not amended before the meeting anyway; it was amended during the meeting. Therefore, the city did not violate the Open Meetings Act on the allegation of failing to post an amended agenda because it did not exist.

Amending an agenda during a public meeting is OK per OMA, but if the amendment is an addition, taking final action (i.e., a vote) on the new item is not allowed. The PAC concluded that a violation did occur on that count, since the council did improperly take final action by “adopting” the proclamation.

At this point you’ve reviewed the process and read a summary of how it played out in the Charvat matter. Now, hear DeKalb attorney Dean Frieders present a “public access report” during the city council meeting January 28. (If you have trouble with the audio, skip to the end of the post for a transcript.)

Has Mr. Frieders asked for a reconsideration of the opinion? Yes. Has a retraction been issued? As of January 30, when he phoned the PAC himself, Mr. Charvat says the answer was no. As of February 5, when the city responded to a request for a copy of the retraction, the answer was still no.

Furthermore, despite Frieders’ intimation that the opinion was faulty due to “bad information” from Mr. Charvat, he (Frieders) is actually making his appeal on the basis that a proclamation is a mayoral power that does not have to be “adopted” by the city council (as ordinances and resolutions do) and thus no “final action” was taken by council. This has nothing to do with Mr. Charvat’s original allegations.

The PAC’s opinion and Dean Frieders’ January 25 appeal to the PAC are shown below. I will also send copies of this email and others upon request.

1/16 PAC Charvat p. 1 photo pac21943-aCharvatFriedersmatter_zps6f9b2e40.jpg

1/16 PAC Charvat p. 2 photo pac21943-BCharvatFriedersmatter_zpsb76e1e7b.jpg

1/16 PAC Charvat p. 3 photo pac21943-cCharvatFriedersmatter_zps0b5c98ac.jpg

Frieders to PAC p1 photo FriederstoPACJan18p1_zps94df84ff.jpg

Frieders to PAC p2 photo FriederstoPACJan18p2_zps7d3783af.jpg

Transcript of city attorney Frieders’ remarks:

Aight, the, over the past several months or the past year, we’ve been updating you about, ah, requests sent to the Public Access Counselor for review of actions taken by the City of DeKalb. Ah, Mr. Mark Charvat, one of our residents, recently submitted a request to the Public Access Counselor. Ah, the Public Access Counselor was provided with some inaccurate information in that Request for Review and as a consequence of that they issued a letter indicating their belief that there might have been a violation of the Open Meetings Act committed by the City of DeKalb. I was able to contact Sarah Pratt, who’s the head of the Public Access Counseling Division of the Attorney General’s Office, and explained to her the situation as it transpired and, and showed her documentation from the city’s meeting minutes and agendas explaining what happened. They have since issued a retraction, said simply they acted on bad information and that they don’t believe there was in fact any violation.