Edgar Pal Lawsuit Against City of Elmhurst

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
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
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
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
matt@loevy.com
joshb@loevy.com
Atty. No. 26796
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What did the Elmhurst City Council discuss in closed session on June 15, 2020?

IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT

DUPAGE COUNTY, ILLINOIS

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

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

that it is exempt.” 5 ILCS 140/1.2.

democracy. 5 ILCS 120/1.

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

closed meetings. 5 ILCS 120/1.

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

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

OMA - JUNE 15, 2020, PUBLIC MEETING

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

internal candidates with the possibility of appointing an interim director.

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

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

to disclose closed session recordings.” Exhibit A.

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.

meetings violating OMA in the same manner.

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

26. The above paragraphs are incorporated by reference.

28. ELMHURST CITY COUNCIL violated OMA by improperly discussing matters

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.

33. The above paragraphs are incorporated by reference.

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

performed an adequate search for responsive records.

carry this burden.

COUNT IV – VIOLATION OF FOIA – WILLFUL AND INTENTIONAL VIOLATION

38. The above paragraphs are incorporated by reference.

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

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

iv. declare that CITY OF ELMHURST violated FOIA;

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

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

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.

/s/ Joshua Hart Burday

Attorneys for Plaintiff

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