McHenry County Blog

Metra has adamantly refused to release information to McHenry County Blog regarding efforts to reimburse the taxpayers for the money that former Executive Director Phil Pagano took without authorization.

The text of page 1 of the Public Access Counselor's letter. Click to enlarge.

Text of page 2 of the Public Access Counselor's letter.

I’ve been trying to obtain such documents since September, 2010, and have been consistently stonewalled.

An open, transparent agency, Metra is not.

Now, the Illinois Attorney General’s Public Access Counselor has ruled that all correspondent from or on behalf of Pagano’s wife Barbara must be released, except for a personal note to a Metra employee.

Fair enough.

The letter from Lisa Madigan’s Office follows (some new paragraphs have been created to make it easier to read on a screen):

OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
Lisa Madigan
ATTORNEY GENERAL
March 9, 2011

Mr. Roman Gold
Freedom of Information Act Officer-Metra
foia@metrarr.com

RE: Pre- Authorization Request 2011 PAC-124877

Dear Mr. Gold:

We have received and reviewed the written notice from Metro of its intention to withhold certain information as exempt from disclosure under Section 7(1)(c) of the Freedom of Information Act (FOIA). 5 ILCS 140/1 et seq., as amended.

On February 8, 2011, Cal Skinner submitted a FOIA request to Metra, seeking copies of “all communication with or on behalf of Barbara Pagano. since [the death of] her husband.”

On February 18, 2011, Metra submitted a pre-authorization Request with the Office of the Public Access Counselor and asserted that the correspondence is exempt from disclosure under Section 7(1)(c) of FOIA (5 ILCS 140/7(1)(c) which exempts from inspection and copying “[p]ersonal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, unless disclosure is consented to in writing by the individual subjects of the information.” The exemption defines ” [u]nwarranted invasion of personal privacy” as ” the disclosure of information that is highly personal or objectionable to a reasonable person and in which the subject’ s right to privacy outweighs any legitimate public interest in obtaining the information.” Id.

On March 4, 2011, Roman Gold, FOIA officer for Metra, supplied this Office with the documents that it seeks to withhold pursuant to Section 7( 1)( c).

Determination

Metra’ s request for approval of correspondence between Ms. Pagano and Metra is approved in part and denied in part.

In its letter to this Office, the Metra explains that the responsive documents do not relate to the public duties of any employee but rather relate to the benefits and rights conferred upon Ms. Pagano due to her status as a widow of a Metra employee.

Section 2. 5 of FOIA ( 5 ILCS 140/ 2.5) provides that “[ a] Il records relating to the obligation, receipt, and use of public funds of the State, units of local government, and school districts are public records subject to inspection and copying by the public.”

Information relating to publicly funded benefits that a public employee or a beneficiary of that employee receives clearly relates to the receipt, obligation and use of public funds. Our review of the correspondence between Metra and Ms. Pagano indicates that the documents in question pertain to certain benefits which
Metra funds and for which Ms. Pagano may be required to contribute to Metra.

Accordingly, the documents relate to the receipt and use of public funds, for purposes of Section 2. 5 of FOIA, and the disclosure of this information therefore would not constitute a clearly unwarranted invasion of Mrs. Pagano’ s privacy.

Metra may, however, withhold a personal note written by Ms. Pagano to a Metra employee pursuant to Section 7(1)( c).

In summary, Metra has not met its initial burden of demonstrating that the correspondence and other records in question are exempt from disclosure pursuant to Section 7( 1)( c). (Emphasis added.)

Its request for approval to withhold those documents is therefore denied. Metra must disclose the documents (other than the personal note referenced above) to Mr. Skinner. Should you have any questions or concerns, please feel free to contact me at ( 312) 814- 5383. This correspondence shall serve to close this matter. (Emphasis added.)

Sincerely,

Matthew C. Rogina
Assistant Public Access Counselor

Now comes into the email box of McHenry County Blog a decision by the Illinois Attorney General’s Public Access Counselor.

In early December Cynthia Schenk asked the McHenry County Conservation District for a list of hunters allowed on district property.

Ancel Glink attorney Scott Puma applied to the Public Access Counselor for permission to deny the request based on the exemption that revelation would be a clear invasion of privacy.  (That’s the same reason that McHenry County College used to deny McHenry County Blog access to ex-President Walt Packard’s performance evaluations.)

On behalf of the Public Counselor, Matthew C. Rogina denied that request.  (Click to enlarge images below.)

Not a particularly big decision perhaps.

But, put in perspective of the YouTube presentation by Keri-Lyn Krafthefer, with the repeated message:

“You must produce the record,”

I think some might find the juxtaposition of the request to hide the document with the message of the video of interest.

It’s really quite humorous, especially the end, which mirrors an infomercial.

You may remember that I’ve been trying to get information about the suicide notes that Phil Pagano’s suicide notes.

I requested that McHenry County Sheriff Keith Nygren send me a copy of Pagano’s signature on one of the notes that he left for his family and any one word containing at least four letters.

You can speculate on why I might think those two elements might be of significance.

October 14th Assistant Public Access Counselor Matthew M. Sebek wrote Nygren’s Freedom of Information Officer Jan Weech a letter requesting that the Sheriff’s “Department provide us with a further explanation of its basis for withholding the subject record excerpts as exempt under Section 7(1)(c).”

You can read the entire letter below (click to enlarge):

That’s the letter I received denying me the right to see bills McHenry County Special Prosecutor Henry “Skip” Tonigan’s submitted to the County Board for payment.

I’m having difficulty understanding how using that part of the Freedom of Information Act granting an exemption because there is an on-going investigation is an adequate excuse for secrecy.

After all, the indictment has been issued and arrests made.

Eight media requests were apparently made to the McHenry County Sheriff’s Department for copies of the suicide notes that Metra Executive Director Phil Pagano wrote to members of his family.  Another was made by the Better Government Association.

Phil Pagano note to Metra. Click to enlarge.

The one to Metra was made public.

Sheriff’s Department FOI Officer Jan Weech refused to release the other documents based on Section 7(1)(c) of the Freedom of Information Act. That’s the one relating to the information being “personal information…the disclosure of which would constitute a clearly unwarranted invasion of privacy…”

The last term quoted above is defined as “the disclosure of information that is highly personal or objectionable to a reasonable person and which the subject’s right to privacy outweighs any legitimate public interest in obtaining the information.”

I could care less about most of the contents of the notes, but there are a couple of things about them I would like to see. I’m not ready to share all of that yet, but a time may come when I shall do so.

Of interest in the Illinois Attorney General’s Public Access Counselor’s office’s letter affirming Weech’s turn down is the following:

“These letters contain Mr. Pagano’s last words to his family members and friends and are expressions of his feelings to these individuals. The letters also contain instructions to his wife for handing personal financial matters and other private family issues.”

Since Pagano took money that he was not entitled to, it seems to me that the public has a distinct interest in the information about the Pagano’s “personal financial matters.”

The hundreds of thousands of Metra dollars went somewhere.

The public has a right to see that it is returned.

If parts of the letters would aid in such recovery, I believe the public has a right to see them.

Others requesting to see the letters follow:

• Kevin Craver, Northwest Herald
• Charles Keeshan, Daily Herald
• Richard Wronski, Chicago Tribune
• Eric Siegel, WLS-TV
• Bob Roberts, WBBM-Radio
• Madeleine Martino Fox, WTTW-TV
• Mary Wisniewski, Chicago Sun-Times
• Bob Herguth, Better Government Association

The stalling tactics of McHenry County College didn’t work.

OK, so it's photo shopped. You get the point, right?

You may remember that I filed a Freedom of Information request for the performance evaluations of ex-President Walt Packard.

You remember him.

The one sent packing Feb. 26, 2009 with no explanation, but with a golden parachute that kept him on the payroll through this summer and he and his sick wife on tax-paid health benefits through August 21, 2012, according to the MCC press release.

That’s three and a half years.

The reason given for hiding this man’s performance evaluations follows:

“because it contains personal information, which if disclosed, would constitute a clearly unwarranted invasion of personal privacy.”

The denial letter then quotes Section 7(1)(c) of the Freedom of Information Act thusly,

an unwarranted invasion of personal privacy means “…the disclosure of information that is highly personal or objectionable to a reasonable person and which the subject’s right to privacy outweighs any legitimate public interest in obtaining the information.”

Now comes Public Access Division Assistant Attorney General Matthew Sebek telling the college that it has not met its burden of proof in its lawyer-prepared denial.

Ex-MCC President Walt Packard

“Evaluations of public employees directly address the manner in which public employees perform their public duties.  Public bodies use these evaluations to determine the public duties of public employees for purposes of Section 7(1)(c) of FOIA.  Accordingly, disclosure of such evaluations would not constitute an unwarranted invasion of personal privacy.”

The letter goes on to say,

“We further note that MCC’s citation to Section 24A-7.1 of the Illinois School Code and House Bill 5154, in support of its 7(1)(c) assertion, is unpersuasive.”Section 24A-7.1 of the Illinois School Code, which exempts from disclosure performance evaluations for certain public educators is simply not applicable to MCC, which, as a community college, is governed b y the Public Community College Act [citation given] and not the School Code.”

Is that a smack down of MCC law firm Robbins, Schwartz, Nicholas, Lifton & Taylor or what?

But there’s more.

“With respect to House Bill 5154′s proposed amendment of Section 11 of the Personnel Record Review Act to exempt performance evaluations of public employees, that Bill was amendatorily vetoed by the Governor on July 26, 2010 in a manner that significantly limits the scope of that legislative change to certain law enforcement personnel.

“In accordance with this letter, MCC may release the requested records to the requester.”

The opinion is below. Click to enlarge it.

Remember how the teachers’ unions got the performance evaluation part of the Attorney General Lisa Madigan’s Freedom of Information Act reform law repealed earlier this year.

I figured that there was one performance evaluation that a lot of people in McHenry County would find of interest—that of former McHenry County College President Walt Packard.

You remember.

Walt Packard floating gently down from his McHerny County College presidency.

The guy with the very golden parachute.

So I filed an FOI request on May 17th. MCC took the maximum amount of time to reply, knowing that there was a bill to strip the FOI Act of any citizen right to discover how public employees’ performance was evaluated.

So, let me share MCC’s “let’s run out the clock” and hope Governor Pat Quinn, that man with the flagging reputation for transparency response from our nontransparent junior college.

The reply points out that Packard’s service as President ended on Feb. 26, 2009. They don’t point out that he is on the payroll until the end of this month. They put it in politer terms.

There is a four-page document evaluating his performance from June 1, 2007 through June 30, 2008.

But you and I can’t see ANY of it,

“because it contains personal information, which if disclosed, would constitute a clearly unwarranted invasion of personal privacy.”

The denial letter then quotes Section 7(1)(c) of the Freedom of Information Act thusly,

an unwarranted invasion of personal privacy means “…the disclosure of information that is highly personal or objectionable to a reasonable person and which the subject’s right to privacy outweighs any legitimate public interest in obtaining the information.”

I don’t know about you, but considering taxpayers are taking about a $200,000 hit for keeping Packard on the payroll from the time he was put into emeritus status—which seems to mean “get paid a lot for no work product”—until the end of this month, I think that creates a pretty big “legitimate public interest in obtaining the information.”

It might help explain why our McHenry County College Board allowed us to be fleeced (with apologies for former Unites States Senator William Proxmire’s Golden Fleece Award).

The letter points out that Packard’s emeritus status ends June 30, 2010, but conveniently ignores the following from its own press release:

“Dr. Packard will also continue to be enrolled in the College’s medical, dental, and vision insurance plans through June 30, 2010, and upon his retirement as President Emeritus, the College will pay the Board’s percentage share of the premium cost of health insurance coverage for Dr. Packard and his spouse for the period from July 1, 2010 through August 21, 2012.” (Emphasis added.)

More “legitimate public interest in obtaining the information.”

In my quest to find out more about what the Crystal Lake Police reported about

“…a suspected misappropriation or theft of funds from South High School,”

I filed a Freedom of Information Request with District 155 requesting request to provide the names of people currently on leaves of absence and the dates those leaves began.

Let’s call the encounter “Round 1.”

I was denied the leave of absences part of what I sought, but I did get the email that Supt. Jill Hawk sent to district employees.

No, no, District Public Information Officer Jeff Puma replied.

It’s exempt, don’t you know? Look at FOIA Section 7(1)(c).

“Unwarranted invasion of personal privacy”

To refresh your memories, here’s the relevant part of the District’s denial letter of April 15th:

“The District intends to deny your request for “the names of any faculty members who are currently on leave of absence and the date(s) such leave(s) of absence began:’ FOIA Section 7(1)(c) exempts the following:

personal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, unless the disclosure is consented to in writing by the individual subjects of the information. “Unwarranted invasion of personal privacy” means the disclosure of information that is highly personal or objectionable to a reasonable person and in which the subject’s right to privacy outweighs any legitimate public interest in obtaining the information. The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.

“Here, I believe that the disclosure of the requested information concerning employees’ leaves of absence would result in a clearly unwarranted invasion of the employees’ personal privacy within the above definition.

“Leaves of absence are highly personal events (which do not necessarily involve an expenditure of public funds since many leaves of absence are unpaid) and their disclosure would be objectionable to a reasonable person.

“Moreover, the District’s employees have not consented to the disclosure of such information. Finally, though I acknowledge that the public may have a legitimate interest in this information, I believe this interest is outweighed by the employees’ rights to privacy.

“For these reasons, I intend to deny a portion of your request under Section 7(1)(c) of the Freedom of Information Act. Pursuant to Section 9.5(b) of FOIA, I will forward this letter to the Public Access Counselor for her review, for a determination whether any further inquiry is warranted, and for a determination whether the records you have requested are exempt from disclosure pursuant to Section 7(1)(c).”

Needless to say, I appealed to the Public Access Counselor of the Illinois Attorney General.

And I won.

Here’s the reply from Amalia Rioja, Chief Deputy Public Access Counselor:

“Section 7(1)(c) of FOIA exempts from inspection and copying “[p]ersonal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, unless disclosure is consented to in writing by the individual subjects of the information.” 5 ILCS 140/7(1)(c).

“The exemption defines “[u]nwarranted invasion of personal privacy” as “the disclosure of information that is highly personally or objectionable to a reasonable person and in which the subject’s right to privacy outweighs any legitimate public interest in obtaining the information.” Id. The disclosure of information that bears upon the duties of public employees, however, “shall not be considered an invasion of personal privacy.” Id.

“The School District’s use of the Section 7(1)(c) exemption with regard to the names of faculty members who are currently on leaves of absence and the dates said leaves began is denied.”

“We have determined that the names of public employees who are on a leave of absence and the dates that said leaves of absence began bears on the their public duties and the disclosure of this information would not constitute a clearly unwarranted invasion of personal privacy. Whether a public employee is currently working or on a leave of absence is information, to which the public has a right to know. Moreover, even if an employee had a right to privacy with regard to this type of information, any such right is outweighed by the public’s legitimate interest in obtaining this information.”

“Accordingly, the School District should provide Mr. Skinner with the names of faculty members currently on leaves of absence and the dates upon which any such leaves commenced.”

Round 2.

Here’s what the Crystal Lake High School District provided on May 6, 2010 (received May 6th):

The information District 155 supplied about employees on leaves of absence and the dates such leaves began. Note the redactions.

My guess is that most of these leaves of absence result from the birth of a child. I know that is the case in one instance.

But, there is are redactions. One name and date is missing.

The excuse for keeping the information of whoever entered into a leave of absence between March 4th and March 29th (assuming the employees are listed in calendar order) is another section of the Freedom, Section 7(1)(n).

“Please see the included list for employees currently on leaves of absence including the date that such leaves began. The District has redacted an employee’s name since said employee is on administrative leave for a disciplinary case that has not yet been adjudicated. Records relating to a public body’s adjudication of employee disciplinary cases are not subject to FOIA under Section 7(1)(n).”

So, at least District 155 is admitting that someone is on leave of absence “for a disciplinary case that has not yet been adjudicated,” but won’t reveal who.

Is this one of those “two steps forward, one step back” situations?

We’ll find out as my second appeal is answered.

It is so delightful to have some referee other than circuit court for Freedom of Information request appeals.

I never appealed to circuit court. I figure I’ve spent enough time in McHenry County courtrooms to last a life time during my divorce proceedings. I spent every vacation and personal day for a couple of years there. So much so that I started calling it the “McHenry County Courthouse and Spa.”

Now, a simple email to the Public Access Attorney of the Illinois Attorney General’s Office gets an answer.

The most recent denied request I have appealed concerned Crystal Lake High School District 155′s refusal to provide the names of people currently on leaves of absence and the dates those leaves began.

Amalia Rioja, Chief Deputy Public Access Counselor wrote the following “Determination” April 26th,

“Section 7(1)(c) of FOIA exempts from inspection and copying “[p]ersonal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, unless disclosure is consented to in writing by the individual subjects of the information.” 5 ILCS 140/7(1)(c).

“The exemption defines “[u]nwarranted invasion of personal privacy” as “the disclosure of information that is highly personaly or objectionable to a reasonable person and in which the subject’s right to privacy outweighs any legitimate public interest in obtaining the information.” Id. The disclosure of information that bears upon the duties of public employees, however, “shall not be considered an invasion of personal privacy.” Id.

“The School District’s use of the Section 7(1)(c) exemption with regard to the names of faculty members who are currently on leaves of absence and the dates said leaves began is denied.” (Emphasis in the original.)

“We have determined that the names of public employees who are on a leave of absence and the dates that said leaves of absence began bears on the their public duties and the disclosure of this information would not constitute a clearly unwarranted invasion of personal privacy. Whether a public employee is currently working or on a leave of absence is information, to which the public has a right to know. Moreover, even if an employee had a right to privacy with regard to this type of information, any such right is outweighed by the public’s legitimate interest in obtaining this information.” (Emphasis in the original.)

“Accordingly, the School District should provide Mr. Skinner with the names of faculty members currently on leaves of absence and the dates upon which any such leaves commenced.”

When the Northwest Herald started running articles about money being missing from some account at South High School, I tried to think of how I might be able to verify some of the elements of the story.

I got a statement from the Crystal Lake Police Department on April 9th.

I sought and received through a Freedom of Information request the email that was sent out to employees (turns out on the night of April 7th.) It was provided and you can see it below:

From: Jill Hawk
Sent: Wednesday, April 07, 2010 835 PM
To: D155-AII Email Recipients
Subject: information

Good Evening:

There is likely to be media coverage in the next few days of an incident relating to the management of funds by a staff member at one of our high schools.

At this time, we are not able to share details with you or the public as this is a confidential personnel issue. The situation is still evolving as we investigate.

However, I am mindful that many members of our D155 family will be impacted by what will be brought forward. I know your professionalism will serve the district well as rumors and speculation abound.

I have confidence that we will we work through this together.

Sincere [That's how my copy ends.]

Here is the denial of my leave of absence request from District 155 Freedom of Information Officer Scott Puma to my April 9th request for leave of absence information:

April 15,2010
Mr. Cal Skinner
275 Meridian St.
Crystal Lake, IL 60014

Response to FOIA Request -Community High School District 155

Dear Mr. Skinner:

This letter is in response to your Freedom of Information Act (“FOIA”) request for Community High School District 155′s (“District”) public statement on the possible theft of money from Crystal Lake South High School and names of any faculty members who are currently on leave of absence and the date(s) such leave(s) of absence began. Your request was received on April 8, 2010, by the District, and is granted in part and it is the District’s intention to deny the request in part as follows.

Your request for the public statement on the possible theft of money from Crystal Lake South High School is granted and included here.

The District intends to deny your request for “the names of any faculty members who are currently on leave of absence and the date(s) such leave(s) of absence began:’ FOIA Section 7(1 )(c) exempts the following:

personal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, unless the disclosure is consented to in writing by the individual subjects of the information. “Unwarranted invasion of personal privacy” means the disclosure of information that is highly personal or objectionable to a reasonable person and in which the subject’s right to privacy outweighs any legitimate public interest in obtaining the information. The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.

Here, I believe that the disclosure of the requested information concerning employees’ leaves of absence would result in a clearly unwarranted invasion of the employees’ personal privacy within the above definition.

Leaves of absence are highly personal events (which do not necessarily involve an expenditure of public funds since many leaves of absence are unpaid) and their disclosure would be objectionable to a reasonable person.

Moreover, the District’s employees have not consented to the disclosure of such information. Finally, though I acknowledge that the public may have a legitimate interest in this information, I believe this interest is outweighed by the employees’ rights to privacy.

For these reasons, I intend to deny a portion of your request under Section 7( 1)(c) of the Freedom of Information Act. Pursuant to Section 9.5(b) of FOIA, I will forward this letter to the Public Access Counselor for her review, for a determination whether any further inquiry is warranted, and for a determination whether the records you have requested are exempt from disclosure pursuant to Section 7(1 )(c).

Please be aware that our response to your request is pursuant to our understanding of your FOIA request. If we have misunderstood your request, please let us know as soon as possible so we may provide the correct information.

If you have any questions or concerns, please do not hesitate to contact me.