McHenry Co. (ECWd) -
A recent Freedom of Information Act request I submitted to the Algonquin Township Road District has now triggered court action directed at James Kelly, the Township attorney. Kelly apparently has refused to provide Road District Records to Andrew Gasser, the current Algonquin Township Road District Highway Commissioner unless he pays for copies to be made.
Considering Kelly was in fact paid for the work by the Road District, those records are the property of the public body, the Road District.
5 ILCS 140/7 (2) A public record that is not in the possession of a public body but is in the possession of a party with whom the agency has contracted to perform a governmental function on behalf of the public body, and that directly relates to the governmental function and is not otherwise exempt under this Act, shall be considered a public record of the public body, for purposes of this Act.
I can say I have never heard of an attorney who had no outstanding bills to his client refuse to turn over his client's legal files to new counsel. I would think such a refusal would be problematic and possibly a valid ARDC issue for Kelly.
Considering Rob Hanlon filed the Motion for Turnover of Road District Records, is it safe to speculate that the Northwest Herald will blame Gasser for costing the township more in legal bills, all while ignoring Kelly's refusal to turn over Road District records when Gasser asked for them? By refusing the records to Gasser, it stops him from being able to properly comply with FOIA as he must first examine the records before determining what is going to be released if anything.
The eleven point Motion speaks for itself.
- James P. Kelly previously served as the attorney for the Algonquin Township Road District (hereinafter “Road District.”).
- By written demand, Andrew Gasser, Algonquin Township Highway Commissioner, requested of James Kelly that he turn over the work product that Mr. Kelly’s firm had previously prepared for the Road District.
- Mr. Kelly in turn has demanded that the Road District pay for the copying of the records that the Road District already paid to have prepared by Mr. Kelly’s firm.
- Mr. Kelly now has his appearance before this Court, in this case, on behalf of Algonquin Township.
- Mr. Kelly has been steadfast in his demand that the owner of the records, Algonquin Township Road District, pay for copying of its own files to permit Mr. Kelly to retain the original files. The original files are owned by the Road District.
- During the pendency of this case, which focuses entirely upon the production of records in connection with the Freedom of Information Act, Plaintiff, Kirk Allen, has sought the records containing work product of Attorney Kelly to the Road District in a FOIA request dated 7/13/2018 at 9:06 am. That work product having been paid for by the Road District is property of the Road District and is now the subject of a new FOIA request.
- Current counsel for the Road District cannot advise the Road District on the FOIA request because the Road District does not have its own files from Mr. Kelly.
- As alleged in the complaint, 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 governmental activity that affect the conduct of government and the lives of people. 5 ILCS 140/1.
- Mr. Kelly cannot assert an attorney lien because the Road District has previously paid all of his invoices.
- Mr. Kelly cannot hold the Road District’s records hostage to facilitate his desire to retain copies of his former client’s records. The client at issue is the Road District.
- In summary, to avoid complicating the litigation in this fairly straight forward case, the Road District wants its own records now held by Attorney Kelly to facilitate a lawful response to the now pending request for records submitted by Plaintiff.
Considering there is no legal question as to who owns the legal files of the Road District, we can only wonder why Kelly is refusing to turn over the public's property. Does he have something to hide? We ask that because of the questionable billing we uncovered where Kelly was billing for the work of a private company operated by Bob Miller, who then paid the bill with taxpayer funds of the Road District.
To date, the Northwest Herald has been silent on many issues involving Kellly, which I find interesting considering a recent Facebook comment from John Styf, Editor of the Northwest Herald. In his attempt to defuse the fake news rants on Facebook, he said they cover "Everything from crashes to events to the way tax money is spent to local government."
- Crashes? - I would call Kelly's actions of billing a public body for private work a major collision.
- Events? - I would call Kelly's refusal to turn over the property to its rightful owner a newsworthy event.
- The way tax money is spent? - Most would think tax money being spent for a private companies legal work is worthy of disclosure to the public.
- Local Government? - The Road District has been the focal point of their recent reporting yet not a peep on the improper billing by Kelly nor the improper payments by Bob Miller.
Maybe someday these local reporters and editors will start focusing on a public body's non-compliance with the law. Doing that takes all the political barriers down as the law knows no party. It also educates the readers as to how things are supposed to be done, which Algonquin Township is an example of how things are not supposed to be done.