The state attorney general’s office says the City of Evanston improperly delayed responding to a request for city records under the Freedom of Information Act by claiming they were sought for a commercial purpose.

In a letter issued last week, Assistant Attorney General Steve Silverman concludes that the city had no legitimate basis for deciding that the request, from Howard Handler of the North Shore Barrington Association of Realtors, fell under the commercial purpose provision of the statute.

Governmental entitites in Illinois normally must respond to requests for records under the Freedom of Information Act within five working days, but can stretch that to 21 working days if the request is for a commercial purpose.

Handler in March requested records about off-campus housing for college students and reports regarding code violations at certain properties. The records were related to efforts by the city, still underway, to impose new licensing restrictions on rental dwelling units in Evanston.

The state law defines “commercial purpose” as “the use of any part of a public record or records, or information derived from public records, in any form for sale, resale, or solicitation or advertisement for sales or services.”

Handler said that NSBAR, a non-profit organization, had no intention of using the records for any such purpose and instead intended to disseminate information regarding “the health, safety, welfare or the legal rights of the general public.”

The city noted in response that Handler is a registered lobbyist for the Illinois Association of Realtors and claimed that because that group “promotes legislation and dispenses campaign contributions” that the request was clearly commercial in nature.

But Silverman said the attorney general’s public access bureau had previously determined that seeking records for lobbying purposes “is not a sufficient basis to characterize a request as having a commercial purpose.”

With no evidence that Handler intended to sell the records or use them to solicit or advertise for sales or services, Silverman concluded that the city incorrectly designated Handler’s request as having a commercial purpose and improperly extended the deadline for responding to the request.

The city did ultimately provide the requested records over a month after Handler first made his request.

Handler says the city has repeatedly designated requests for information about real property as commercial requests and says the practice appears to be “an orchestrated effort to delay and prevent the release of public information” especially when the requests raise concerns about practices within the city’s Community and Economic Development department.

City Manager Wally Bobkiewicz said the city has acknowledged receipt of the “advisory, non-binding opinion” from the state, but believes the city’s existing procedures are sufficient for processing FOIA requests.

Bobkiewicz complained that the city staff has spent over 100 hours this year processing “repeated and voluminous requests” from Handler for city records.

He said that of 11 inquiries received from the attorney general’s office over the past 18 months about the city’s handling of FOIA requests, the attorney general’s office has agreed with the city’s actions to withhold or redact records in six cases, and agreed in part in two others and one case is still pending.

Only in two cases, Bobkiewicz said, has the state issued a decision that the city misinterpreted Freedom of Information Act rules.

Related document

Letter from attorney general’s office

Bill Smith is the editor and publisher of Evanston Now.

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  1. Any delays in implementing FOIAs are antithetical to democracy

    I have generally had positive experiences filing FOIAs with the city–although one time I requested a police incident report and much of it was redacted without explaining why.

    One of the items redacted in the incident report I received was the name of the person arrested.  My understanding of the law is that they can't redact that information.  I didn't pursue with the Attorney General because I knew who the person was, but it left a bad taste in my mouth.

    Other requests have been filled promptly and adequately.

    But with this report the City Clerk needs to explain himself since he is the FOIA officer and the elected official overseeing these things.

    1. In fairness to the Clerk.

      In fairness to Clerk Greene and his staff, while he is the City's designated FOIA Officer, it is my belief that it is his and his staff's intention to provide requested public records in an efficient and transparent manner but is often obstructed by certain city staff.  As Clerk, other than some limited records maintained in his office, most records are maintained and accessible by other departments, and he is limited in his ability to compel them to turn the records over.  In this particular case, it was the City's legal department that contrived this "commercial" argument in a purposeful attempt to delay and/or prevent the release of documents.  This "commercial" label has not just been applied just to me, but is being systematically applied to a number of requesters who have been seeking information held by the department of Community and Economic Development.  Ironically, while some city staff complain about the number of staff hours it takes to provide public records (which is an age-old argument many public bodies make in an effort to limit government transparency and oversight), the amount of staff time spent fighting the release of public records is astonishingly high.  The definition of a commercial request in the Illinois FOIA is so plain and simple that this was certainly not a grey area of the law, but purposeful obstruction.

  2. City Manager’s complaints about FOI Requests

    An undercurrent in the commentary from City staff and officials is that Mr. Handler's requests are somehow unjustified and wasteful of City resources. 

    As a Realtor member of NSBAR, I have to applaud the professionalism and hard work Mr. Handler does on behalf of property owners and the real estate industry.  My dues pay his salary.  He regularly educates us about important issues developing in Springfield, Cook County, Lake County, McHenry County and in municipalities throughout the North Shore served by NSBAR. He helps us understand how to educate our clients about matters important to their property ownership – on matters such as transfer taxes, tax assessments, section 8 vouchers, rental housing licensing, tenant-landlord ordinances, affordable housing, city inspection requirements, and a host of other similar matters. 

    If he's been active in trying to understand the issues around the City's efforts to introduce new rules for landlords in Evanston, it's because Realtors throughout the North Shore are asking him to keep us educated and informed so we can help our clients understand how it affects their ownership options.

    He is not acting out of some personal crusade or trying to commercially profit – he is performing as I expect him to as an educational and information resource.  He shouldn't be being stalled, put off, or smeared by our city officials and staff.

    He's quite good in his job – and that means when he's getting stalled and put off by bureaucrats trying to brush off his diligent efforts to get accurate answers to serve whatever agenda they find it uncomfortable he's uncovering, he is good at persistently and appropriately pressing for the answers we, as citizens, deserve from our public servants. 

    Rather than try to smear his good work with complaints about his requests, our City Manager should instead applaud citizens such as Mr. Handler trying to bring clarity and transparency to the deliberations of our governmental bodies by learning about issues and educating the broader audience of citizens affected by our governing institutions. 

  3. City attempts to with hold information

    The Law department is clearly trying to with hold information from the public,  when I filed a request for information on the fire at the water plant , they claimed a final report had not been issued, therefore they did not have to give me the information even though this was months after the fact.  Later they let me look at the report for about 5 minutes at Council. 

    I think there is a effort here to hide bad information from the public. In the case of Mr. Handler, it is clear the city of Evanston community development department made a mess of the inspections. Several people pointed this out at council.  Since the issue of the inspections was just an attempt for the city to do non value added inspections to increase revenues, staff did not want to show the fact these might not be needed.

    There appears to be a pattern here to with hold information for political purposes and protect staff mistakes.

    Unforunately the law does little to puniish the city.  Ofcourse what would you expect from a law department that claims it saved us $350,000, since it won three cases?  ( by the way I noticed a poster no doubt paid with our tax dollars claiming this big savings at city hall )  Maybe I should file a FOI on this to get the facts? I would suspect people that work in real law offices would have a good laugh.

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