Nicolosi & Associates: Municipal attorney bills not public record

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Responding to numerous allegations of conflict-of-interest issues and possible use of inside information, The Rock River Times issued Freedom of Information Act (FOIA) requests to the villages of Rockton, Roscoe, Caledonia and the City of Loves Park, all of which are represented by Nicolosi & Associates.

Nicolosi & Associates partner Paul Nicolosi is co-founder (along with fellow partner Gino Galluzzo) of The Buckley Companies. Nicolosi serves as president and CEO of Buckley, while Galluzzo is vice president.

The Buckley Companies are composed of Buckley Architects, Buckley Capital, Buckley Construction, Buckley Land Planners, Buckley Real Estate Brokerage, Buckley Title Services and Nicolosi & Associates, LLC.

Combined, these companies have contributed $93,250 to political campaigns. In May, the Winnebago County Board awarded a $355,000 Land Use Plan contract to Buckley, along with Chicago-based Camiros, Ltd.

The FOIA requests, which were directed to the respective municipal clerks, asked for access to bills from Nicolosi & Associates for legal fees over the past several years.

The Rock River Times received denials of our requests from Nicolosi & Associates partner Gregory E. Cox on behalf of Loves Park, Rockton and Roscoe.

Cox’s responses stated, “…the bills themselves are exempt from disclosure since they detail the work done and disclosure would violate the attorney/client privilege.”

Since the official phone number for Caledonia has been disconnected, no fax number could be obtained for The Rock River Times’ FOIA request to the village. Instead, the request was sent via Certified Mail to Caledonia Village Clerk Sue Yakey Oct. 30, 2006.

Nicolosi associate attorney Aaron Szeto’s reply, dated Nov. 14, came well after the legal seven-business-day response period.

Szeto reiterated Cox’s assertion the bills are privileged and cited Illinois FOIA statute “65 ILCS 140/7(1)(n).” Presumably, Szeto was actually referring to statute 5 (not 65) ILCS 140/7(1)(n), which states the following exemption:

“Communications between a public body and an attorney or auditor representing the public body that would not be subject to discovery in litigation, and materials prepared or compiled by or for a public body in anticipation of a criminal, civil or administrative proceeding upon the request of an attorney advising the public body, and materials prepared or compiled with respect to internal audits of public bodies.”

In the 1997 case of Ulrich v. Stukel, however, the court ruled:

“It is well-recognized that information regarding a client’s fees generally is not a ‘confidential communication’ between an attorney and client, and thus is not protected by the attorney client privilege. … The payment of fees is merely incidental to the attorney-client relationship and typically does not involve the disclosure of confidential communications arising from the relationship.”—294 Ill. App. 3d 193, 689 N.E.2d 319, 228 Ill. Dec. 447 (1st Dist. 1997).

Illinois Press Association attorney Donald M. Craven agrees.

“Attorney bills are public record, subject to production, and only the material that is subject to a claim of privilege can be redacted,” Craven explained. “An entry that says ‘Telephone call with Mayor’ on a particular day should be disclosed in full.”

The Rock River Times is appealing the FOIA denials. Appeals are directed to the respective mayors/village presidents. If the appeals are also denied, The Rock River Times is then entitled to file suit against the municipalities.

“The burden is then on the village to show that an exemption applies,” Craven concluded.

Replies to The Rock River Times’ appeals are expected shortly.

From the Nov. 29 – Dec. 5, 2006, issue

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