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:
Here is Collins’ reply:
Attorney at Law
13610 Kishwaukee Valley Road
Woodstock Illinois 60098
Telephone and facsimile: 815-338-8339
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:
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