Nicolosi & Associates responds to FOIA requests

Editor’s note: The following letter was sent to staff writer Stuart R. Wahlin at The Rock River Times. The Rock River Times will address the issues raised in this letter in future issues.

RE: Recent FOIA Requests

Dear Mr. Wahlin:

It is with great disappointment that I read the front-page headline story in your most recent edition. As you noted in your November 9th e-mail, our firm and the communities it represents have timely responded to all of your formal requests under the Freedom of Information Act and your e-mails.

From these responses you are well aware—but have clearly chosen not to include in your story—the specific reasons we have asserted the exemption. In hopes that you will correct the inaccurate perceptions that you have created regarding our response, I am setting out the grounds of our previous reply. I should note further that we have conferred with Assistant Attorney General Terry Mutchler on this matter. She has confirmed that our response was reasonable. We have requested that the Attorney General’s office assist us in evaluating the appropriate response to any further requests of this nature from you.

With that said, you and your readers should be made aware that our firm and the communities it represents have a long history of promptly and earnestly complying with all state laws including the Freedom of Information Act. The Act, however, is very clear that there are certain documents and requests that are not appropriate for disclosure. Here are some of the inaccurate perceptions your article created and our response to them:

The Rock River Times (RRT) has actually made two requests.

1) RRT’s First Requests:

The first requests from RRT came on October 30, 2006, and was sent to each of the four communities for which we serve as general corporate counsel. Your first request was for copies of all invoices our firm submitted to each community. In the case of Loves Park, the response would have entailed the production of up to 40 years’ worth of documents. It has been explained to you that our firm’s invoices to its clients are very detailed and can run up to 70 pages each month for each of the communities. It has been our firm’s long-standing policy to provide its clients with detailed time slips for every charge so that each client can be kept informed on matters via their monthly billings as to the basis of each charge.

Our response to this first request came to you on November 2, 2006, and was complete and timely. We did suggest that you modify your intended request, and we did so because the Act specifically allows communities to deny requests that are overly burdensome. The Attorney General’s office has concurred with our conclusion that up to 40 years of detailed legal billings is likely overly burdensome and therefore that our denial on this ground was appropriate.

In addition to the overly burdensome exemption, we also rejected your first request because the FOIA act has specific exception regarding attorney-client privileged information.

While your reference to the Stukle case is partially correct, it is a further example of your publication of partial truths as it does not tell the full story. Specifically, Stukle states, “Certain types of billing records may contain explanations for legal fees and may indicate the type of work done or matter discussed between the attorney and client. As such they could reveal the substance of attorney-client discussions and be subject to valid claims of attorney-client privilege or exemption.” We have also asked the Attorney General’s office to provide us with their understanding of the following issues which are not clear in either the FOIA statute or cases interpreting the statute:

1) Does a municipality have a duty to provide detailed slips it receives from its outside law firm?

a. Is doing this overly burdensome?

b. Is this creating a “new” document?

c. Are summaries of the bills which show the matter name, hours spent, and dollars spent per month adequate?

2) If a municipality is required to provide the entire billings, does it have the right to remove information from each slip that would be considered confidential?

a. If it has the right to remove confidential information from each slip, does the municipality have the right to charge back the cost of the review to the party making the request?

2) RRT’s Second Requests:

The second requests from RRT came on November 17, 2006, and again was to each of the four communities that our law firm represents. While the RRT called this request an “appeal” of the responses provided to the first request, it was a modification to the original request in that it sought documents from the last 3 years. As the law requires, we treated “appeal” as a second request since it was different than the first requests and responses were again supplied in a timely manner.

Since the new request reduced the number of years, we believed it were more reasonable and less burdensome. As such the municipalities agreed to make certain information available. To that point we notified you that information that we did not believe to be exempt by the FOIA statute as being protected by attorney-client privilege would be provided. Each of the municipalities had copies of the 3 years of invoices you requested ready for you to pick up.

We understand that you may in fact attempt to obtain the detailed records. If you in fact do request this detail, we may be able to provide certain additional information after review of an extensive records and pending the outcome of the Attorney General’s review. This will subject each community to some expense and, therefore, we are providing an initial response in an attempt to meet your request.

As seen in this more complete and accurate facts, your headline and the content of your article was factually incorrect and leaves an impression of impropriety and a disregard of the law by our client municipalities and our firm, which is simply untrue. None of these impressions—which I believe you have deliberately sought to create—is accurate. While subsequently retracting intentional misinformation does not completely release RRT from responsibility for its actions, we trust you will clarify this matter in your paper.


Paul S. Nicolosi

From the Dec. 13-19, 2006, issue

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