McHenry County College Explains Why Health & Fitness Club Study Is Top Secret, Hush, Hush

Woodstock attorney Jane Collins wondered what backed up the power point presentation (see Part 1 and Part 2) given to the McHenry County College Board about the proposed Health & Fitness Club, plus almost doubling the size of the classroom and laboratory space.

So, she filed a Freedom of Information request on January 8th.

It was denied.

Collins appealed to the Illinois Attorney General’s Division of Public Access.

Below you can read what MCC’s attorneys at Robbins Schwartz wrote in defense of that denial:

MCC FOI Reply 3-25-13 p 1MCC FOI Reply 3-25-13 p 2MCC FOI Reply 3-25-13 p 3

Here is Collins’ reply:

Jane Collins
Attorney at Law
13610 Kishwaukee Valley Road
Woodstock Illinois 60098
Telephone and facsimile: 815-338-8339

Date: 4/3/13

To: Steve Silverman, Assistant Attorney General

Office of the Attorney General, Public Access Counselor

Re: FOIA Request for Review — 2013 PAC 23558

Dear Mr. Silverman:

Jane Collins

Jane Collins

On Saturday, March 30,2013 I received a copy of McHenry County College’s response from its legal counsel to your office’s request for additional information about MCC’s denial of a January 8, 2013 FOIA request for documentation supporting a Feasibility Study, Phase I.

MCC denied the “Meritrage Market Assessment and Competitive Analysis Report” dated August 2012. It based its denial on a letter from Power Wellness Management [PW] informing MCC that disclosing Meritrage’s report to the public would violate a confidentiality agreement between PW and Meritrage.

Attached to my January 20, 2013 request for review: MCC’s confirmation that it has no confidentiality agreement with PW, nor any contract with Meritrage. Also attached: an agreement for Phase I of the Feasibility Study which does not mention Meritrage, nor bind MCC to confidentiality in PW’s work products listed in Appendix A.

What MCC is telling its constituents: we have a report that we’ve relied on to persuade you that we can construct a new $42 million facility without raising your taxes. You paid for the report.

But you can’t see it.

The report should be released for the following reasons:

I. The study is a “public record” by FOIA definition. It was prepared for and used by MCC to formulate a power point report on its Feasibility Study, Phase I, 9/18/12. (Attachment #1) It is in MCC’s possession, presumably integral to the power point report imprinted with MCC’s — not Power Wellness’s — logo. (But without attribution to Meritrage.)

II. MCC is not bound by an agreement to which it is not a party, nor to Meritrage with whom it has no contract.

MCC counsel states that disclosure of Meritrage’s report “could subject the College to litigation by Power Wellness Management or Meritrage Healthcare Strategies,” but provides no evidence showing how MCC is contractually bound by an agreement to which it is not a party.

It is Meritrage who claims its work is proprietary. Counsel offers no written evidence that MCC, who has no contract with Meritrage, has ever agreed to keep the Meritrage report confidential.

Further, if litigation were a viable threat, why did Moraine Valley Community College, another PW client, provide to this requester, without reservation, Meritrage’s market survey for MVCC, also marked confidential? (Attachment #2.)

III. MCC has failed to meet its burden of proving that the record it denied falls within the FOIA exemption claimed.

Claiming that a record is “proprietary” is not enough. FOIA exemption 7(1)(g) requires counsel to show that disclosure of the trade secrets or commercial or financial information, if disclosed, would cause competitive harm. No evidence provided.

There is a claim, however, that “[d]isclosing the Report would have a chilling effect on the College’s ability to contract with private companies and/or receive similar information from private companies in the future.”

Again, there is no evidence to support this assertion.

In fact, but for Meritrage’s special relationship with PW, it might not have been chosen to conduct MCC’s market survey.

There was no competitive bidding.

And it seems speculative to claim that other market survey companies would not be willing to compete for the College’s business.

Or be unwilling to disclose how they work, to ensure that such surveys are independent and objective, so may be relied upon.

To justify MCC’s denial, its counsel relies on the Blue Star Energy case.

But this is the case most often cited to show how narrowly the FOIA exemption 7(1)(g) must be applied. Most often, in a setting where commercial rivals, like Blue Star Energy, thwarted from acquiring trade secrets through discovery at trial, resort to FOIA to obtain them, as in this case from the agency (ICC) who regulates energy companies.

Those facts are inapposite to these, where MCC — unlike its sister college, MVCC — refuses to release a public record to its taxpayer constituents exercising their right to know.

Blue Star does apply here, but only to illustrate that MCC’s denial cannot meet what the claimed exemption.

For all of the above reasons, I respectfully request that the AGPAC Office advise MCC that it must release the requested record to the public.


Jane L. Collins

cc: Laura J. Brown, McHenry County College FOIA Officer (letter only) ZA


McHenry County College Explains Why Health & Fitness Club Study Is Top Secret, Hush, Hush — 8 Comments

  1. One of the first big questions must be, Why is MCC using a big-bucks, downtown-Chicago law firm?

    Are there no McHenry County attorneys capable of handling MCC’s legal affairs? How much did Robbins Schwartz charge for that letter?

    $1,000? $2,000. More?

    Maybe Jane will FOIA that bill… How much does MCC pay Robbins Schwartz in a year?

    Thank goodness for Jane Collins, who has the expertise, the interest, the knowledge, the legal background and the persistence to stick with it. All taxpayers should be grateful to her.

    Thanks, Jane!

  2. Ditto Gus Philpott’s gratitude for Jane Collins.

    Over the years, she’s taken on the difficult, politically sensitive issues, because it needs to be done. We can thank God for the Jane Colllins of this world, and others like her.

    In McHenry County it’s an uphill battle against resistant media and those who stand to benefit financially (isn’t that what’s really behind so many political decisions in this County?)

  3. Full transparency.

    Release the study.

    Power Wellness has a very strong potential of conflict of interest.

    The public must know the facts.

  4. Mr. Chirikos,

    Jenner, Wilbeck, and Sivertsen all are against this. I have tried contacting Molly Walsh but I did not get a response.

    I will vote Tuesday for these three candidates – I have also walked for all three of these candidates.

    In my humble opinion, these three men are the fiscally responsible candidates out of the group.

    Andrew Gasser

  5. Oh I see.

    Top secret, just like the health care bill, when Nancy Pelosi said, “you have to vote for it to see what’s in it.”

    Right here in McHenry County!

    Enough is enough!!!

  6. Full transparency. It’s public money.

    Two years ago, I brought Illinois Policy Institute out to do a transparency audit on Cary D-26.

    If elected, I will recommend MCC do the same, and repeat the audit every two years.

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