District 205 challenges Public Access Council’s ruling, continues battle to keep unflattering letter from public

By Joe McGehee
Staff Writer

Nearly two months after The Rock River Times first submitted a Freedom of Information Act (FOIA) request Aug. 18 to obtain a copy of an unflattering letter written by former Rockford Auburn High School Principal and current Freeport High School Principal Dr. Patrick Hardy, the letter remains unread by Rockford taxpayers.

Rockford Public School District 205’s legal department has refused to make the letter public as of press time. The letter was written by Hardy in response to District 205 Superintendent Dr. LaVonne M. Sheffield’s letter titled “Separation of Employment,” dated June 17, 2010.

Hardy resigned as principal of Auburn under his own will to take the position at Freeport. Attempts by The Rock River Times to obtain the letter directly from Hardy have been unsuccessful.

“Patrick’s reputation in Rockford is beyond dispute,” said Molly Phalen, president of the Rockford Education Association.

After two FOIA requests, the district filed a Pre-Approval of Use of Exemption 7(1)(c) or 7(1)(f), which suggested the letter could not be released because it was both a privacy issue and a personnel issue. The Rock River Times then filed a Request for Review with the Attorney General’s Public Access Council (PAC) Sept. 21.

The PAC ruled on The Rock River Times’ Request for Review Sept. 29, rejecting both of the district’s exemptions and stating in their ruling that District 205 should “… release the letter to Mr. McGehee after providing Dr. Hardy written notice…”. The PAC office went on to state that their ruling should “…serve to close this matter.”

However, District 205 has yet to supply a copy of the letter to The Rock River Times, and in their battle to keep the letter from the public, the district continues to spend more taxpayer dollars on legal fees.

District files for use of third exemption

In response to the PAC’s Sept. 29 ruling that the district should release the letter, District 205 has filed for the use of a third exemption—Section 7(1)(n) of the FOIA. The third exemption was cited in an Oct. 8 letter to the PAC and Josh Sharp, director of government relations for the Illinois Press Association (IPA), drafted by Kathryn S. Vander Broek of Hinshaw & Culbertson LLP of Chicago.

The Rock River Times has worked closely with Sharp and the IPA throughout the process of attempting to obtain the letter. The IPA is the largest state newspaper association in the country, representing more than 480 daily and weekly newspapers in Illinois in matters ranging from advertising to accessing public information.

Sharp said of the district’s filing of a third exemption: “I stand by my earlier comments about how the district plans to keep this letter private. I don’t want to comment any further about this issue given the high probability for future legal action.”

Sharp said previously in an Oct. 6-12 article, “It appears that the school district is doing everything it can, even asserting exemptions that don’t exist under the law, to keep this information from the public.”

The district’s third filing for the use of an exemption asserts “The June 19, 2010, letter requested by the Rock River Times (Rebuttal Letter) is a disciplinary record associated with a District employee.”

The district’s response goes on to state: “As a disciplinary record, the letter falls within the exemption from disclosure articulated at Section 7(1)(n) of FOIA. Accordingly, upon reconsideration, the District continues to deny the Rock River Times request for the June 19, 2010 Rebuttal Letter but clarifies that the grounds on which it bases its denial includes Section 7(1)(n) of the Act for the reasons stated herein. Consequently, the District agrees to provide the Rock River Times with a copy of the final disposition of the disciplinary matter at issue upon receipt of such a request.”

The district’s response concludes: “If after your (PAC’s) review of the District’s position on reconsideration you still believe FOIA allows for the release of the letter sought by the Rock River Times, the District is prepared to defend its position upon reconsideration, and, if necessary, its right to reply to the September 23, 2010 Request for Review. The District would prefer, however, to resolve this matter without incurring the additional time and costs associated with litigation. Therefore, it is our hope that you will concur with the District’s position upon reconsideration that the letter sought by the Rock River Times is exempt from disclosure pursuant to Section 140/7 (n) of FOIA as it is a disciplinary record that is not the final outcome of the disciplinary proceeding and that this position resolves this matter.”

View the PAC’s ruling and the district’s response by clicking on the headline for this story at rockrivertimes.com, and PDFs of these documents will appear attached to the story.

District 205 racks up legal fees

Lori Hoadley is under contract with District 205 as its general legal counsel. According to a copy of Hoadley’s contract—obtained by The Rock River Times through an FOIA request—Hoadley makes $155,000 per year. However, Vander Broek, who is employed by Hinshaw & Culbertson LLP in Chicago, is not under contract, and her billable hours are paid for with taxpayer dollars.

Between Sept. 1, 2009, and Sept. 22, 2010, District 205 has paid $741,141.32 in total to Hinshaw & Culbertson, according to information obtained from District 205 through an FOIA request.

According to a biography of Vander Broek on Hinshaw & Culbertson’s website, her “practice focuses in the areas of school and employment law, where her experiences and background in law and social work serve to uniquely benefit her clients.” Vander Broek recently gave a presentation titled “Top 10 Things to Know About the New FOIA” to the Illinois Association of School Boards Lake Division.

District 205 charges taxpayers to fulfill their FOIA requests

District 205 has recently requested money from Rockford taxpayers for fulfillment of FOIA requests.

Douglas Clayburg, who requested data pertaining to discipline reports, was told it would cost more than $220 to fill his request.

“I felt like they were either trying to dissuade me from getting the request, or trying to slow down the process,” Clayburg said. “The frustrating part is that I came into this thing open-minded, but I’ve been shut out of the process.”

Jane Hayes of Watchdogs for Ethics in Education (WEE) recently requested a copy of the district’s contract with Evans Newton Inc., but was told that completing the request would cost her more than $2,000.

“To me, it seems like we are on to something, because they (District 205) are being so withholding,” Hayes said. “My group may soon consider going to the Attorney General’s office as well to have our case reviewed.”

District 205 Chief Communications Officer Mark Bonne said, “The costs are a reflection of what it would take to fulfill the request.”

The IPA’s Sharp said: “The charges for copying and reproducing in this case are not permitted under the law. There seems to be a fundamental misunderstanding by District 205 about how the Freedom of Information Act works.”

The Illinois FOIA states in section 6, “Authority to charge fees,” that “(b) No fees shall be charged for the first 50 pages of black and white, letter or legal sized copies requested by a requester. The fee for black and white, letter or legal sized copies shall not exceed 15 cents per page.”

The Act also states that the public body may not charge requesters for the costs of any “…search for and review of the records or other personnel costs associated with reproducing the records.”

Furthermore, the Illinois FOIA states that: “(c) Documents shall be furnished without charge or at a reduced charge, as determined by the public body, if the person requesting the documents states the specific purpose for the request and indicates that a waiver or reduction of the fee is in the public interest. Waiver or reduction of the fee is in the public interest if the principal purpose of the request is to access and disseminate information regarding the health, safety and welfare or the legal rights of the general public and is not for the principal purpose of personal or commercial benefit.”

According to the Act, “The imposition of a fee not consistent with subsections (6)(a) and (b) of this Act constitutes a denial of access to public records for the purposes of judicial review.”

Related Documents:

1. IPA FOIA document (pdf)

2. Hinshaw & Culbertson discipline exemption document (pdf)

From the Oct. 13-19, 2010 issue

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