IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT

DUPAGE COUNTY, ILLINOIS

Chris Kachiroubas
EDGAR PAL, ) e-filed in the 18th Judicial Circuit Court
) DuPage County
ENVELOPE: 10104615
Plaintiff, ) 2020CH000497
) FILEDATE: 8/14/2020 10:52 AM
Date Submitted: 8/14/2020 10:52 AM
v. ) Date Accepted: 8/14/2020 1:41 PM
DP
)
CITY OF ELMHURST, ) 2020CH000497
ELMHURST CITY COUNCIL, )
)
Defendants. )

COMPLAINT

NOW COMES Plaintiff, EDGAR PAL, by his undersigned attorneys, LOEVY &

LOEVY, and brings this Freedom of Information Act (FOIA) and Open Meetings Act (OMA)

suit to force CITY OF ELMHURST and ELMHURST CITY COUNCIL to comply with FOIA

and OMA. ELMHURST CITY COUNCIL violated OMA by discussing issues in a closed

session that must be discussed in open session and by failing to produce the recordings and

minutes from the closed session. CITY OF ELMHURST violated FOIA by failing to produce

the recordings of the closed session. In support of his Complaint, PAL states as follows:

INTRODUCTION

1. Pursuant to the fundamental philosophy of the American constitutional form of

government, it is the public policy of the State of Illinois that all persons are entitled to full and

complete information regarding the affairs of government and the official acts and policies of

those who represent them as public officials and public employees consistent with the terms of

the Illinois Freedom of Information Act (“FOIA”). 5 ILCS 140/1.

 2. Restraints on access to information, to the extent permitted by FOIA, are limited

exceptions to the principle that the people of this state have a right to full disclosure of

information relating to the decisions, policies, procedures, rules, standards, and other aspects of

government activity that affect the conduct of government and the lives of the people. 5 ILCS

140/1.

3. Under FOIA Section 1.2, “[a]ll records in the custody or possession of a public

body are presumed to be open to inspection or copying. Any public body that asserts that a

record is exempt from disclosure has the burden of proving by clear and convincing evidence

that it is exempt.” 5 ILCS 140/1.2.

4. Pursuant to the public policy of the State of Illinois, public bodies exist to aid in

the conduct of the people’s business and the people have a right to be informed as to the conduct

of their business. Actions and deliberations of public bodies must be taken openly in order to

promote transparency and accountability at all levels of government. Such openness is crucial to

democracy. 5 ILCS 120/1.

5. Under the Illinois Open Meetings Act, citizens shall be given advance notice of

and the right to attend all meetings at which any business of a public body is discussed or acted

upon in any way. Exceptions to the public’s right to attend exist only in those limited

circumstances where the General Assembly has specifically determined that the public interest

would be clearly endangered or that the personal privacy or guaranteed rights of individuals

would be clearly in danger of unwarranted invasion. 5 ILCS 120/1.

6. The General Assembly has declared that it is the citizen’s right to know and the

provisions for exceptions of the open meeting requirements shall be strictly construed against

closed meetings. 5 ILCS 120/1.

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 PARTIES

7. Plaintiff EDGAR PAL is an individual who resides in DuPage County, Illinois.

8. Defendant CITY OF ELMHURST is a public body under FOIA located in

DuPage County.

9. Defendant ELMHURST CITY COUNCIL is a public body under OMA located in

DuPage County.

OMA - JUNE 15, 2020, PUBLIC MEETING

10. On June 15, 2020, ELMHURST CITY COUNCIL held a meeting subject to

OMA.

11. At this meeting ELMURST CITY COUNCIL purported to enter into a closed

session in part for “[t]he appointment, employment, compensation, discipline, performance, or

dismissal of specific employees of the public body or legal counsel for the public body 5 ILCS

120/2(c)(1).”

12. The closed session included discussion about the Public Works Director retiring

and that the City Manager requested permission to fill the position. There was discussion about

identifying the position as a leadership role as well as the projects that would be assigned to the

position. ELMHURST CITY COUNCIL proceeded to reach a consensus to recruit external and

internal candidates with the possibility of appointing an interim director.

13. OMA Section 2(c)(1) does not authorize such generalized discussions to take

place in a closed session. Rather, only certain discussions limited to the merits or conduct of

“specific” employees and candidates may take place in a closed session.

14. OMA Section 2(c)(1) does not authorize discussion in closed session of issues

that impact a public body’s budget, such as whether to fill a vacant position.

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 FOIA - AUGUST 4, 2020, FOIA REQUEST

15. On August 4, 2020, PAL requested “any audio, video, or verbatim recordings of

the City Council meeting (both the open and the closed session) held on June 15, 2020.” Exhibit

A.

16. On August 4, 2020, CITY OF ELMHURST responded by producing a recording

of the open session, but, among other things, produced nothing at all related to the closed

session. Exhibit B.

17. CITY OF ELMHURST’s response also only contained a link to the recording of

the open session and no explanation to why certain records are withheld. Exhibit B.

18. On August 5, 2020, at 11:24 AM, PAL followed up inquiring about the portions

of the meeting not produced, including the recording of the closed session. Exhibit B.

19. On August 5, 2020, at 2:10 PM, in a reply to the original email thread that

contains the FOIA request, CITY OF ELMHURST stated, “Closed session on June 15, 2020,

recordings are closed under numerous exemptions specifically the ones stated when entering

executive session. So the City would chose to reject that portion of the FOIA. Therefore, I am

asking for clarification. As a municipality, we are required to have the record, but not required

to disclose closed session recordings.” Exhibit A.

20. On August 6, 2020, PAL reiterated its original request (from August 4, 2020) and

his subsequent clarification (from August 5, 2020) by stating, “I am requesting the entirety of the

recording for the City Council meeting in question. But of course, I am aware that you may

choose to withhold certain portions of that recording by citing the applicable FOIA exemptions.”

Exhibit A.

21. On August 7, 2020, CITY OF ELMHURST stated that it “will provide all public

meeting recordings” and will inform PAL if it needs more time. Exhibit B.

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 22. On August 12, 2020, PAL asked CITY OF ELMHURST whether it is “able to

provide the responsive recordings,” but CITY OF ELMHURST never responded. Exhibit B.

23. As of the date of this filing, CITY OF ELMHURST has not complied with FOIA

and has not produced all responsive records.

PROBABLE CAUSE OF FUTURE VIOLATIONS

24. Plaintiff is aware of no evidence that indicates ELMHURST CITY COUNCIL

will not commit the same OMA violations at future meetings.

25. Upon information and belief, ELMHURST CITY COUNCIL will hold future

meetings violating OMA in the same manner.

COUNT I – VIOLATION OF OMA – JUNE 15, 2020 MEETING

26. The above paragraphs are incorporated by reference.

27. ELMHURST CITY COUNCIL is a public body under OMA required to hold

open meetings.

28. ELMHURST CITY COUNCIL violated OMA by improperly discussing matters

in a closed session and by failing to produce the recording and minutes of the closed session.

COUNT II – VIOLATION OF FOIA – FAILURE TO PRODUCE RECORDS

29. The above paragraphs are incorporated by reference.

30. CITY OF ELMHURST is a public body under FOIA.

31. The records sought in the FOIA request are non-exempt public records of CITY

OF ELMHURST.

32. CITY OF ELMHURST violated FOIA by failing to produce all the requested

records.

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 COUNT III – VIOLATION OF FOIA – FAILURE TO PERFORM AN ADEQUATE
SEARCH

33. The above paragraphs are incorporated by reference.

34. CITY OF ELMHURST is a public body under FOIA.

35. CITY OF ELMHURST bears the burden of proving beyond material doubt that it

performed an adequate search for responsive records.

36. CITY OF ELMHURST has failed to come forward with sufficient evidence to

carry this burden.

37. CITY OF ELMHURST has violated FOIA by failing to adequately search for

responsive records.

COUNT IV – VIOLATION OF FOIA – WILLFUL AND INTENTIONAL VIOLATION

OF FOIA

38. The above paragraphs are incorporated by reference.

39. CITY OF ELMHURST is a public body under FOIA.

40. The records sought in the FOIA request are non-exempt public records of CITY

OF ELMHURST.

41. CITY OF ELMHURST willfully and intentionally, or otherwise in bad faith failed

to comply with FOIA.

WHEREFORE, PAL asks that the Court:

i. declare that ELMHURST CITY COUNCIL violated OMA;

ii. enjoin ELMHURST CITY COUNCIL from improperly discussing matters in

closed session;

iii. order ELMHURST CITY COUNCIL to produce the recordings and minutes of
the closed session;

iv. declare that CITY OF ELMHURST violated FOIA;

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 v. order CITY OF ELMHURST to conduct an adequate search for the requested
records;

vi. order CITY OF ELMHURST to produce the requested records;

vii. enjoin CITY OF ELMHURST from withholding non-exempt public records

under FOIA;

viii. order Defendants to pay civil penalties;

ix. award Plaintiff reasonable attorneys’ fees and costs; and

x. award such other relief the court considers appropriate.

RESPECTFULLY SUBMITTED,

/s/ Joshua Hart Burday

____________________________

Attorneys for Plaintiff

EDGAR PAL

Matthew Topic
Joshua Burday
Merrick Wayne
LOEVY & LOEVY
311 North Aberdeen, 3rd Floor
Chicago, IL 60607
312-243-5900
[email protected]
[email protected]
Atty. No. 26796

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