The First Electric Newspaper’s Case for Making Sheriff’s Department’s Report on Andy Zinke’s Rita Corp. Actions Public

Here’s something to chew on for the weekend.

It’s attorney Mary Gardner’s memo on behalf of The First Electric Newspaper‘s attempt to enforce a Freedom of Information request filed for the investigative report by the McHenry County Sheriff’s Department’s exonerating Undersheriff and, not coincidentally, candidate for Sheriff, Andy Zinke.

I have separated some long paragraphs into more readable text and added some dot points where it will make lists easier to comprehend.

Gonigam Zinke Report FOI Memo Heading 12-10-13

Plaintiffs, JOHN PETER GONIGAM (“Gonigam”) and the FIRST ELECTRIC NEWSPAPER (“Newspaper”) (together, the “Plaintiffs”), by and through their undersigned attorney, Mary E. Gardner, P.C., submit the following memorandum of law in support of its motion for summary judgment on their behalf and against the OFFICE OF THE SHERIFF OF McHENRY COUNTY (the “Sheriff’s Office” or the “Defendant”):


Gonigam is the owner and publisher of the Newspaper, a news-gathering organization, covering public events and news in and around Algonquin, Lake In The Hills and Huntley, Illinois. See Complaint & Answer ¶¶ 1-3. They seek disclosure pursuant to the Illinois Freedom of Information Act, 5 ILCS 140 et seq. (the “Act” or “FOIA”) of certain records of the Office of the Sheriff of McHenry County, as detailed below. See Complaint & Answer ¶ 15. Defendant,Office of the Sheriff of McHenry County (the “Sheriff’s Office”), is a public body located in McHenry County, Illinois. See Complaint & Answer ¶ 4.

On October 23, 2012, former McHenry County Sheriff’s Office Narcotics Chief, John Koziol, filed a petition with the McHenry County Circuit Court seeking appointment of a Special
Prosecutor to investigate his charge that Andrew Zinke, Undersheriff of McHenry County, had compromised a U.S. Drug Enforcement Agency investigation by telling a private citizen, Brian Goode, that DEA agents had been tracking a shipment of marijuana destined for Goode’s Crystal Lake business.

Andy Zinke and Keith Nygren shake hands.

Andy Zinke and Keith Nygren shake hands.

Zinke is Sheriff Keith Nygren’s endorsed successor to become Sheriff in 2014 and has donated to both Keith Nygren’s and Zinke’s election campaigns. See Complaint & Answer ¶¶ 10, 11.

On November. 2, 2012, the court denied that request, ruling that the State’s Attorney could investigate the matter. See Complaint & Answer ¶ 12.

McHenry County States Attorney Louis A. Bianchi followed up, but on December 19, 2012, announced that even if Koziol’s allegations about Zinke were true, they didn’t violate Illinois Law; Bianchi suggested that Nygren might investigate to see if there was a violation of Sheriff’s Office General Orders. See Complaint & Answer ¶ 13.

The Sheriff’s Equal Employment Officer and Legal Affairs Officer, Donald Leist, personally conducted an investigation for the Sheriff’s Office. See Complaint & Answer ¶¶ 22.

Leist initiated the investigation on November 19, 2012. See Complaint & Answer ¶ 29. Four officers were interviewed; documents, the Sheriff’s general orders, and Koziol’s affidavit along with Koziol’s petition for a special prosecutor and the order denying it reviewed; a statement from the DEA obtained; and a report issued.

Based upon that report, the Sheriff determined, by himself, that Zinke did nothing wrong. See Complaint & Answer ¶ 29, Ex.G.

On January, 22, 2013, the Northwest Herald newspaper published a story on its interview with Nygren, who announced that his “investigation” had found Zinke hadn’t violated General Orders. See Complaint & Answer ¶ 14.

Two days later, on January 24, 2013, Plaintiffs filed a FOIA request that the Sheriff produce “a copy of the report of the Sheriff’s Office Internal Investigation into whether Undersheriff Andrew Zinke violated any general orders in conveying information to Brian Goode as alleged in Sgt. John Koziol’s petition for a Special Prosecutor.”(the “FOIA request”). See Complaint & Answer ¶ 15. The request was denied January 31, 2013. See Complaint & Answer ¶ 16.

The Sheriff’s Office said the documents were exempt from disclosure as “Records relating to a public body’s adjudication of employee grievances or disciplinary cases. . . .” See Complaint & Answer ¶ 17.

On February 5, 2013, the Plaintiff requested a review by the Public Access Counselor of the Illinois Attorney General’s Office. See Complaint & Answer ¶ 18. In addition to the other documents provided to the AG’s Office, Leist disclosed the existence of and provided the AG’s office with a copy of an audio disc that contained an interview with two deputy sheriffs. See Complaint & Answer ¶ 23.

On May 1, 2013, the AG found that the Sheriff violated FOIA by withholding records, that the Sheriff’s Office did not conduct an “adjudication”, and that the Sheriff is required to produce the requested records. See Complaint & Answer ¶ 38. See Exhibit 1.

The Sheriff still refused, and Plaintiffs filed the suit. The records of the Sheriff’sinvestigation, including the audio disc interviews, are “public records” within the meaning of 5ILCS 140(c) of the FOIA. None of those records relate to a public body’s “adjudication,” even if they may have been relied upon in the course of an adjudication (if there ever was one).

While this case has been pending, the Northwest Herald newspaper reported on November 1, 2013 that it had “seen the documents” at issue.

Defendants’ refusal to comply with the Attorney General’s order, constitutes a willful and intentional violation of the FOIA. As a result of the Defendants’ failure and refusal to produce the requested documents, Plaintiffs have incurred and will continue to incur attorneys’ fees and costs in connection with this action, for all of which Plaintiffs seek reimbursement from the Sheriff herein. Plaintiffs further request that the Court impose on the Defendant a penalty of between $2,500 and $5,000 for each of its two violations of the FOIA.


I. Summary Judgment Is Appropriate.

“‘Summary judgment is proper where the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ 735 ILCS 5/2-1005(c)(West 2000); Traveler’s Insurance Co. v. Eljer Manufacturing, Inc., 197 Ill. 2d 278, 292, 258Ill. Dec. 792, 757 N.E.2d 481 (2001).” Ill. Educ. Ass’n v. Ill. State Bd. of Educ., 204 Ill. 2d456 (2003).

“FOIA cases should be handled on motions for summary judgment, once the documents at issue are properly identified.” Bluestar Energy Servs. v. Ill. Commerce Comm’n, 374 Ill.App. 3d 990, 997 (1st Dist. 2007); Cooper v. Dept of the Lottery, 266 Ill. App. 3d 1007, 1012(1st Dist. 1994), cert. denied at 159 Ill. 2d 565. The trial court should conduct an in camera inspection of the documents to determine whether the material falls within an exemption claimed. Id.

Here, we have only the pleadings.

Even the documents index, provided to the Court informally and to Plaintiffs’ counsel with a restriction that its contents cannot divulged, is not part of the record.

The case presents a legal issue:

has the Sheriff’s Office met its burden of proving that the documents sought fall within the narrow exemption from public disclosure for “[r]ecords relating to a public body’s adjudication of employee grievances or disciplinary cases”?

II. The FOIA’s Exceptions to Disclosure Must Be Read Narrowly, and the PublicBody Seeking to Avoid Disclosure Must Prove It Is Entitled to the Exemption.

The Illinois Supreme Court has been clear in its interpretation of the FOIA:

The “purpose of the FOIA is to open governmental records to the light of public scrutiny.” Bowie v. Evanston Community Consolidated School District No. 65, 128 Ill.2d 373, 378 (1989). Accordingly, under the FOIA, “public records are presumed to be open and accessible.” Lieber v. Board of Trustees of Southern Illinois University, 176 Ill.2d 401, 407 (1997); see also Illinois Education Ass’n v. Illinois State Board of Education, 204 Ill.2d 456, 462-63,(2003). This legislative intent is set forth by the General Assembly in section 1 of the FOIA [Citations shortened.]:

Pursuant to the fundamental philosophy of the American constitutional form of government, it is declared to be 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 this Act. Such access is necessary to enable the people to fulfill their duties of discussing public issues fully and freely, making informed political judgments, and monitoring government to ensure that it is being conducted in the public interest.

Southern Illinoisan v. Ill. Dept. of Public Health, 218 Ill. 2d 390, 415 (2006). The Court continued:

Based upon the legislature’s clear expression of public policy and intent set forth in section 1 of the FOIA that the purpose of that Act is to provide the public with easy access to government information, this court has held that the FOIA is to be accorded “liberal construction to achieve this goal.” Bowie, 128Ill.2d at 378. Accordingly, we have, on several occasions, held that the exceptions to disclosure set forth in the FOIA are to be read narrowly so as not to defeat the FOIA’s intended purpose. See, e.g., Illinois Education Ass’n,204 Ill.2d at 463; Lieber, 176 Ill.2d at 407; Federation of State, County &Municipal Employees (AFSCME) v. County of Cook, 136 Ill.2d 334, 341 (1990). Therefore, “when a public body receives a proper request for information, it must comply with that request unless one of the narrow statutory exemptions set forth in section 7 of the Act applies.” Illinois Education Ass’n, 204 Ill.2d at 463;Lieber, 176 Ill.2d at 408; AFSCME, 136 Ill.2d at 341; 5 ILCS 140/3(a) (West1998) (“Each public body shall make available to any person for inspection orcopying all public records, except as otherwise provided in Section 7 of thisAct”). [Citations shortened.] [Emphasis added.]

Id., at 416. “[W]hile a public body may elect to redact exempt information from documents,the public body “shall make the remaining information available for inspection and copying”(emphasis added). 5 ILCS 140/7(1) (West 2010). “When the issue is whether the force of the statutory language is mandatory or permissive, then ‘shall’ does usually indicate the legislature intended to impose a mandatory obligation.” Heinrich v. White, 975 N.E.2d 726, 732, 363 Ill.Dec. 700 (2d Dist. 2012). Further, the court “must not deviate from the plain language of thestatute by reading into it exemptions, limitations, or conditions that have no basis in the text.” Gekas vs. Williamson, 393 Ill. App. 3d 573, 579 (4th Dist. 2009).

The Act’s purpose of opening governmental records to the light of public scrutiny must be upheld. “Reliance upon self-determination by public officials and public employees as to what should and what should not be disclosed to the public would frustrate the purpose of the FOIA. The purpose of FOIA is to permit the public to decide for itself whether government action is proper.” [Citations omitted.] Cooper, 266 Ill. App. 3d at 1012.

A. The Adjudication Exemption Requires That Certain Criteria Be Met.

The Sheriff urges that its documents are exempt as records relating to an adjudication”pursuant to Section 7.1(n) of the FOIA. The FOIA provides an exemption for:

(n) Records relating to a public body’s adjudication of employee grievances or disciplinary cases; however, this exemption shall not extend to the final outcome of cases in which discipline is imposed.
5 ILCS 140/7.1(n).

This exemption appeared as an amendment to FOIA, effective March 1, 2010. Plaintiffs’counsel has found no Illinois case law interpreting the word “adjudication” in the FOIA context. However, in the context of a school teacher’s dismissal, the Illinois Appellate Court has distinguished an adjudication from an investigation:

[T]he function of investigation/charging is distinct from the function of adjudication. The hearing officer takes and hears evidence (adjudication), while the school board simply investigates and gathers evidence (investigation).“Investigate” means “[t]o trace or track; to search into; to examine and inquire into with care and accuracy; *** examination.” Black’s Law Dictionary at 740.“Adjudicate” or “adjudge” means “to decide” and “[i]mplies a judicial determination.” Black’s Law Dictionary at 39.
Board of Educ. v. Spangler, 328 Ill. App. 3d 747, 757 (1st Dist. 2002). The court must construethe statute as a whole, considering each part in conjunction with the other parts, and specific terms in a statute take color from the words surrounding them and must be interpreted in their context. Sibenaller v. Milschewski, 379 Ill. App. 3d 717, 721 (2d Dist. 2008).

In interpreting the FOIA, the Illinois Supreme Court has looked to Blacks Law Dictionary for guidance. Southern Illinoisan, supra, at 421. Blacks Law Dictionary 47 (9th ed. 2009 )defines “adjudication” as “[t]he legal process of resolving a dispute; the process of judicially deciding a case.” An “adjudication hearing” is defined as an “[a]gency proceeding in which a person’s rights and duties are decided after notice and an opportunity to be heard.” Black’s Law Dictionary 788 (9th ed. 2009).

So, to qualify as an “adjudication”, the process must include notice and an opportunity to be heard, evidence heard by the trier of fact, and the legal process of resolving a dispute or judicially deciding a case. In contrast, an “investigation” includes gathering evidence. The difference between the two processes is like that of police and judge; police investigate and judges adjudicate.

B. The FOIA Imposes the Burden of Proving Entitlement to an Exemption on the Public Body Claiming It.

Plaintiffs do not have the burden of proving the documents sought are not subject to an exemption. Rather, the burden is placed squarely “on the public body to establish that denial of a FOIA request is in accordance with the Act and that the records fall within the exemption it has claimed.” Southern Illinoisan, supra, at 417, citing 5 ILCS 140/11(f).

‘To meet this burden and to assist the court in making its determination, the agency must provide a detailed justification for its claim of exemption, addressing the requested documents specifically and in a manner allowing for adequate adversary testing.’ (Emphasis in original.) Baudin v. City of Crystal Lake ,192 Ill. App. 3d 530, 537, 139 Ill. Dec. 554, 548 N.E.2d 1110(1989); accord Cooper v. Department of the Lottery , 266 Ill. App.3d 1007, 1012, 203 Ill. Dec. 926, 640 N.E.2d 1299 (1994); Carbondale Convention Center, Inc. v. City of Carbondale , 245 Ill.App. 3d 474, 477, 185 Ill. Dec. 405, 614 N.E.2d 539 (1993);Williams v. Klincar, 237 Ill. App. 3d 569, 572, 178 Ill. Dec. 463,604 N.E.2d 986 (1992).

Ill. Educ. Ass’n, 204 Ill. 2d at 464 (2003); Rockford Police Benevolent & Protective Ass’n v. Morrissey, 398 Ill. App. 3d 245, 150 (2d Dist. 2010).

In claiming that the records requested are protected from disclosure by the “adjudication”exemption, the Sheriff has the burden of proving entitlement to that exemption.

There is no doubt which party has the burden. “The burden of proof at the trial level is on the agency to establish that the documents in question are exempt from disclosure.” Bluestar Energy, 374 Ill.App. 3d at 994-95.

C. The Sheriff Has Failed to Provide a Detailed Justification for the Exemption Claimed.

The Index of Records that the Sheriff provided utterly fails to reflect any justification for claiming the adjudication exemption.

The Sheriff’s “general orders” enumeration fails to even address the general topic of each, eliminating any potential for testing how they relate to an “adjudication” of charges against Zinke.

Not only has the Defendant failed to provide the detailed justification for its claim of exemption, it has managed to tie Plaintiffs’ hands behind their backs so that no adequate adversary testing of its rationale is really possible.

The Index of Records proffered by the Sheriff includes descriptions of documents so sparse it barely provides the basic nature of the document withheld.

More fantastic still, the Index includes references to a press release as well as a pleading and affidavit from another publicly-filed lawsuit within the McHenry Circuit Court, which the Sheriff seeks to withhold as a part of its alleged“adjudication” of the claims against Undersheriff Zinke.

The Sheriff has utterly failed in both its requirements under the FOIA and its duty to this Court as a litigant.

The “detailed justification” must be sufficiently detailed to allow adversarial testing. Ill.Educ. Ass’n, 204 Ill. 2d at 464. Failure to provide a proper detailed description warrantsrejection of the exemption claimed. Rockford Police, 398 Ill. App. 3d at 150-151.

III. The Sheriff Has Failed to Prove the Requested Documents Are Exempt From Disclosure.

The documents of public agencies are presumed under the Act to be public.

The exemptions are numerous, but narrowly interpreted.

The Sheriff’s Office has the burden of proving it is entitled to claim an exemption for the documents.

It has failed.

The courts have been clear that the descriptions of exemptions are not to be judicially expanded.

Public bodies claiming exemptions are not allowed to “weasel” out of required disclosures.

In asserting an exemption for an “audit”, a public body may not suppress what is really a “survey”. Rockford Police, 398 Ill. App. 3d at 150-151. “In the first instance, defendants provide no detailed rationale to explain their bare conclusion that the survey (again, we note that this is defendants’ own terminology) qualified as an “audit” under section 7(l)(n) of the FOIA. Because of this failure alone, we could properly hold that defendants did not meet their burden of providing a ‘detailed justification,’ ‘addressing the requested documents specifically.’” Id.,quoting Illinois Ed. Ass’n, 204 Ill. 2d at 464. “In the second place, defendants offer noexplanation of how the survey satisfies the definition of an ‘audit’.” Rockford Police, 398 Ill.App. at 150-151.

Leist pretty clearly conducted an investigation, complete with

  • interviews,
  • gathering court documents,
  • reviewing the Sheriff’s own general orders,
  • reading press releases,
  • reviewing emails, and
  • preparing a report by the investigating officer.

There the Index stops.

There is none of the indicia that might evidence an adjudication.

There is nothing in the Index to indicate that a formal “hearing” was held.

A transcript of such a hearing would most certainly have been subject to the records request, so we must assume no hearing was conducted.

There are no transcripts of testimony.

There is only the investigator’s own secret internal report.

Indeed, there is not even a written decision by the Sheriff. [Underlined in the original.]

We only know about the Sheriff’s decision because he announced it to the Northwest Herald.

Leist’s March 19, 2013 letter to the Illinois Attorney General relates exactly what happened:

“the Sheriff after considering the evidence adduced in the investigation, adjudicated the matter on January 14, 2013, when he determined that the allegations that Undersheriff Zinke violated General Orders 1.5(4)(E)(8)a;1.5.00(4)(E)(44)(a); or 1.1.01(IV)(D)(1) were not sustained.” FN 1 See Exhibit 2.

= = = = =

FN 1 Interestingly, these are not the General Orders included in the Index of Records.

= = = = =

A year before the primary election, Sheriff's Department employee Don Leist wrote this letter to the Public Access people at the Illinois Attorney General's Office.

A year before the primary election, Sheriff’s Department employee Don Leist wrote this letter to the Public Access people at the Illinois Attorney General’s Office.

So, the Sheriff reviewed Leist’s report and decided the matter.

The Sheriff’s determination was presumably oral, because there is nothing in the Index to indicate any decision.

There is absolutely nothing contained in the Index to indicate any final, ah, shall we say “outcome” whatever.

The Sheriff’s bare conclusion that the documents “relate to an adjudication” and are thus exempt from disclosure is insufficient to carry its burden.

Calling something an “adjudication”does not make it so.

The Index of Records reveals there was not an “adjudication”.

At best, appears the Sheriff made an oral administrative decision within the Sheriff’s Office, based on a secret internal investigation, to clear the name of the Sheriff’s hand-picked successor and bury any evidence of wrongdoing.

There is not even a written determination.

Plaintiffs submit that –absent a verdict – even a full-blown trial would not result in an “adjudication”; rather, that would be either a mistrial or a hung jury.

Plaintiffs seek disclosure of information that bears directly on Zinke’s behavior as Undersheriff.

Other Sheriffs have tried to protect their deputies by withholding unfavorable information, asserting the exemption for “personnel files and personal information maintained with respect to employees.”

Faced with a similar situation, the Fourth District Appellate Court held that,

“The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.” Gekas, 393 Ill. App. 3d at 579.

There, Gekas alleged that he was the victim of police brutality; and the Sheriff of Sangamon County informed him that after an investigation the office determined that the complaint was unsubstantiated. Gekas then submitted an FOIA request for information on his assailant. The Sheriff denied the request.

The Fourth District held for the plaintiff.

Andy Zinke

Andy Zinke

“That a complaint against a deputy sheriff is ‘unfounded’ is nothing more than a conclusion of the sheriff’s office: in response to the complaint, the public body investigated itself, or ‘self-monitored.’

“We should interpret the Act in such a way as to avoid absurd results.

“If the Act allowed a public body to deny access to complaints that it deemed to be unfounded, defeating the Act would be as easy as declaring a complaint to be unfounded.” Id., at 585.

Further, the Court said:

“To monitor the Sangamon County sheriff’s office to ensure it is being conducted in the public interest, citizens might want to see whether the Division is performing a fair and objective investigation of complaints. They might want to see whether complaints that the Division determined to be unfounded are really unfounded.

“Obviously, citizens cannot perform this critique (which section 1 calls nothing less than the people’s “duty”) if so-called “unfounded” complaints are exempt from disclosure for the tautological reason that the public body decided they were unfounded. Such an exemption would throw a cloak over potential wrongdoing and insulate officials from political accountability.”

Id., at 585. Although it is true that the Gekas Court applied its reasoning to the “personal information” exclusion rather than the one for “adjudication of employee grievances or disciplinary cases”, the rationale behind the decision clearly favors disclosure of any investigation into a deputy’s alleged wrongdoing.

While no Illinois courts have interpreted the “adjudication” exemption, the federal courts have had opportunities.

Because the Illinois FOIA was patterned after the federal statute, federal case law should be used to interpret the Illinois Act. Bluestar Energy, 374 Ill. App. 3d at 996.

In Macias v. City of Chicago, the U. S. District Court for the Northern District of Illinois assessed the city’s motion for a protective order in terms of the Illinois FOIA. The city sought to suppress its police officers’ complaint register files. The parties disputed whether those files were considered confidential under Illinois law, specifically the FOIA. “Defendants contend that the opening of a CR file is the first step involved in the resolution of a disciplinary case and that,[ w]hether the finding that resolves the case reaches the level of a Police Board hearing or not, the entire file relates to the adjudication of a disciplinary case.’” 2010 U.S. Dist. LEXIS 144528 *3(N.D. IL 2010) (See Exhibit 3). The court held that “the information contained in CR files relates to the investigation of a complaint and . . . the adjudication of the complaint occurs after the IPRA (Independent Police Review Authority) has issued its finding. The CR files do not reveal an adjudicatory process, and the fact that the files may ultimately be relevant in a later adjudicationdoes not put them within the FOIA exemption.”

Later, addressing a motion for reconsideration, the court said: “under Defendants’ proposed interpretation of [FOIA’s adjudication exemption], even those CR files forming the basis of cases in which discipline is imposed would remain exempt because they relate to the public body’s adjudication. This interpretation would frustrate the very statutory intent Defendants claim underlies the FOIA amendment. Moreover, the FOIAamendment did not overrule the analysis in Gekas, which concluded that complaints ofwrongdoing, whether founded or unfounded, bear on an officer’s public duties, and their disclosuredoes not invade the officer’s personal privacy.” 2010 U.S. Dist. LEXIS 144535, *3. See Exhibit 4.

Although the Attorney General’s determination in the instant case was not a binding opinion, six weeks later the a binding opinion was issued in another case, that of WMBD 31 News’ FOIA request to the City of Bloomington.

There, WMBD sought information about a traffic accident involving Bloomington’s Assistant Police Chief.

The City withheld the investigatory records and traffic citations relating to the accident, claiming the request sought “private information” and related to a public body’s “adjudication of employee grievances or disciplinary cases”. See Exhibit 5.

This binding opinion is now the standard by which the Attorney General’s Public Access Office, the arbiter of the Illinois Freedom of Information Act, will judge future claims of exemption from disclosure as part of an alleged adjudication.

The Attorney General’s determinations and federal court opinions are persuasive.

The Sheriff must not be allowed to “self-monitor” and decide for itself whether complaints against itsdeputies are unfounded without any public scrutiny of the public. As in Gekas, such a result would be absurd. The investigatory file must be released; there was no adjudication. There wasn’t even afinal decision.

IV. The Sheriff’s Office’s Voluntary Disclosure of the Records to the Northwest Herald Precludes a Claim to Exempt Those Same Records From Disclosure to Plaintiffs.

More than four months after this case was filed, the Northwest Herald proclaimed in its November 2, 2013 editorial that it had “seen the documents”. See Ex. 6.

Zinke RITA NWH Admits tO Having Report 11-1-13 real date

The top of the editorial in which the Northwest Herald admits to having seen the Sheriff’s Department report on Andy Zinke that Keith Nygren won’t give to Pete Gonigam of The First Electric Newspaper.

Before that, presumably only a limited number of people in the Sheriff and the Court had seen the documents; even the Assistant States’ Attorney had not reviewed them. FN 2

= = = = =

FN 2 This is based on representations in open court during this case.

= = = = =

Plaintiffs presume that no one at the Court disclosed the records to the Herald, so apparently someone at the Sheriff’s Office did so.

It’s hard to imagine this file was left at the water cooler, so only those who had the restricted access to it could have shown it to the Herald.

Only Leist and Nygren are known to have seen it.

Voluntary disclosure in one situation can preclude later claims that records are exempt from release to someone else.

Lieber vs. Board of Trustees of Southern Ill. Univ., 176 Ill. 2d 401, 413(1997). Quoting the Eighth Circuit Court of Appeals, the Illinois Supreme Court said that

“selective disclosure by the government ‘is offensive to the purposes underlying the FOIA and intolerable as a matter of policy. Preferential treatment of persons or interest groups fostersprecisely the distrust of government the FOIA was intended to obviate.’”

Id., quoting State of N.Dakota ex rel. Olson v. Andrus, 581 F.2d 177, 182 (8th Cir. 1978).


The FOIA places the burden on the Sheriff to prove an there was an adjudication.

He has

  • completely,
  • thoroughly and
  • conspicuously by glaring absence,

failed to do so.

Liberal construction of the FOIA is required, and that liberal construction must be interpreted in favor of disclosure, not for hiding the details of a police investigation into the behavior of its own officer.

The behavior of the Undersheriff, especially one seeking election to the prime position of Sheriff, is of paramount importance to the general public.

The investigation into Zinke’s behavior – allegedly informing the target of a DEA investigation that the feds were monitoring the target’s warehouse for a drug delivery – is exactly the sort of record that the FOIA was designed to open, so that the public will be able to fully evaluate candidates for public office.

In the words of the Act itself:

“Such access is necessary to enable the people to fulfill their duties of discussing public issues fully and freely,making informed political judgments, and monitoring government to ensure that it is being conducted in the public interest.”

The public must be able to exercise that check on government that holds the government to the scrutiny of transparent and honest investigations into the behavior of its public officials and officers.

FOR THESE REASONS, Plaintiffs, JOHN PETER GONIGAM and the FIRST ELECTRIC NEWSPAPER LLC, request that this Court enter summary judgment in their favor and against the Defendant, the OFFICE OF THE SHERIFF OF McHENRY COUNTY, granting the relief requested in Plaintiffs’ summary judgment motion filed contemporaneously herewith.

Respectfully submitted,


By: ______________________________________
Mary E. Gardner, Their Attorney

Mary E. Gardner (ARDC # 6190951)
Mary E. Gardner, P.C.
P.O. Box 330
West Dundee, Illinois 60118
Tel: 847/804-7222
Fax: 866/400-0235

= = = = =
Pete Gonigam’s latest story on the case can be found here.


The First Electric Newspaper’s Case for Making Sheriff’s Department’s Report on Andy Zinke’s Rita Corp. Actions Public — 13 Comments

  1. The First Electric Newspaper is not even a legitimate news source.

    It’s not even listed in well-known media guides.

    Where are Gonigam’s credentials for being called a “newspaper?”

    All Gonigam does is maintain a blog.

    This is just another futile propaganda attempt to put an image in the voters’ minds that Undersheriff Andrew Zinke is dishonest.

    This is nothing more than a desperate attempt coordinated by Mr. Corruption himself, Louis Bianchi.

  2. Lawyers are prohibited from serving as attorney and witness at the trial of a case.

    The purpose behind that rule is clear:

    “The rule prohibiting a lawyer from acting as both advocate and witness in the same case reflects a number of important considerations. Permitting an advocate in a matter to testify as a witness in that matter may unfairly prejudice the case of his or her client or the opposing party and may erode public confidence in the administration of justice.” Weil, Freiburg & Thomas, P.C. v. Sara Lee Corp., 218 Ill. App. 3d 383, 395-96, 577 N.E.2d 1344, 1353-54 (1st Dist. 1991).

    Don Leist, being the person who performed the investigation, is the key witness on the issue of whether it was an “investigation” or an “adjudication,” which is the issue at the heart of FEN’s case.

    How do you all think it will affect public confidence in the administration of justice if Leist gets be the attorney and witness in opposition to FEN’s motion for summary judgment?

    Does the fact that this is a case of great public interest affect your analysis on this issue?

  3. There are many examples of an Illinois government denying an initial FOIA request only to be subsequently overturned by the courts.

    If one feels a governmental body is stonewalling a FOIA request, the following are also resources to turn for assistance.

    1. Better Government Association in Chicago (Andy Shaw)

    2. Citizens Advocacy Center in Elmhurst

    3. Center for Open Government at IIT Chicago Kent College of Law.

    The Paul Simon Public Policy Institute at SIU Carbondale has published A Citizen’s Guide to Using the Illinois Freedom of Information Act.

    The reason you can obtain a copy of any local school district’s Superintendent’s contract is thanks to a FOIA challenge by

    Mark Stern vs Wheaton Warrenville Community Unit School District 200.

    Lisa Madigan called out the school district for claiming the contract was exempt from disclosure.

    The school district claimed that since the Superintendents employment contract was in the Superintendents personnel file, it was exempt from FOIA disclosure.

    That case went all the way to the Illinois Supreme Court.

    And thanks to FOIA, Scott Reeder, while he was at the Small Newspaper Group, was able to complete two key investigations.

    1. The Hidden Cost of Tenure.
    Tenured teachers not losing their teaching license after being fired for significant offenses.

    2. Hidden Violations.
    Dealt with teacher licenses and revocation of pension benefits as it relates to teacher misconduct.

    Teacher misconduct is still occurring.

    This example comes from the same school district, CUSD 200.

    The district removed teacher Edwin Klemm from the speech team.

    Later a student’s parents found a sexual note written by Klemm to their daughter.

    The parents wisely turned the note over to the police, not the school.

    Klemm was sentenced to 10 years in prison.

    “To be perfectly honest I wasn’t surprised since I had heard about the relationship he had with the student,” said a former student who asked not to be identified.

    “He was actually quite open about it. He told people that the reason he was asked to leave the speech team was because he, supposedly, had too close of a relationship with her.”

    The school district removed the teacher from the speach team, but the teacher had remained a teacher at the school, Wheaton North, until the letter was uncovered by the parents and turned over to the authorities and Klemm was formerly charged.

  4. “Fukoku” = Kim Zinke.

    Sure hope your not too attached to your house, your assets and all of your belongings Kim, because your words are actionable..

    Do believe you have slandered several commentators and others, including: Lou Bianchi, Pete Gonigam, Paul Scharff, the ex husband of the 1981 Murder in Mchenry and more…

    Now, now, Kim if you think Gordy Graham will be assigned theses cases, you can just forget that thought.

    When they get done with Judge Gordon Graham during depositions in Rockford he will no longer be a judge…

    You and Andy may just have to turn in your badges in and move to another State so you and Andy can get jobs as migrant workers…

    That would be “SWEET JUSTICE”

  5. I always wondered why when Undersheriff Zinke notified a friend of his of an investigation regarding his business it was deemed to be ok and ruled that Andy did not break any laws or General Orders but when one of Sheriff Nygren’s Correctional Officers did the same but on a much smaller investigation a few years ago he was summarily fired.

    Just wondering…

  6. Fuky, if there is nothing to hide , then release the report.

    It does not matter if Gonigam has a blog or runs MSNBC.

    He is a citizen and taxpayer who deserves to see this “secret” investigation report.

    All of the taxpayers deserve to see what an a-hole the undersheriff is.

    Keep trying to deflect Fuky nut job.

  7. B4 Obama was elected as a state legislator, there was a lot of ‘smoke’ around his candidacy.

    Now that the ‘smoke’ has literally become a ‘fire’ in a our Nation’s capital, finally, more people are coming to understand the truth behind the original ‘smoke’.

    There is ‘smoke’ around Zinke.

  8. Mark (12/20/13 5:24PM) mentions CUSD 200 (and farther down, Wheaton North).

    Since we have Woodstock CUSD 200 in the immediate readership area of McHenry County Blog, it is important to clarify that the CUSD (Community Unit School District) 200 is NOT Woodstock D-200.

    It is, as stated by Mark, the CUSD 200 based in Wheaton, Illinois, which is a public school district mainly serving the communities of Wheaton and Warrenville and also serving parts of Carol Stream, Winfield, and West Chicago.

  9. Will Judge Meyer have to warn Don Leist to keep quiet again?

    He told him a while back that he could observe at the bench but was not to speak.

    Leist forgot that court instruction and opened his mouth at the last court hearing on December 12.

    It’s a long time to January 29.

    Will Judge Meyer tolerate that again?

    Or will he hand Leist the cap and tell him to go stand in the corner?

  10. Gonigam can spell, he writes a good sentence, knows more than four letter words, and has the courage to walk against the wind when it is called for.

    He is one of the People in things like “We the People…”

    Commenting here about him and his “newspaper” instead of about the story is an old news diversionary tactic.

    Kinda like in the Wizard of Oz when everyone is being told to not look behind the curtain.

    And again, even if no law was broken, IF Zinke revealed something to someone that might have compromised an investigation, that wouldn’t say much about his ability to make smart decisions.

    Is that a good think to have in a person running for Sheriff?

  11. If Judge Meyer has any integrity he will wrap this up before the primaries.

    Actions speak louder than works, Judge Meyer…

    Do you have “Courage” or are you a “Coward”?????

  12. Judge Meyer, I don’t believe, gives a that’s butt about how Dum Dum feels nor what he/she thinks about how this case is progressing.

    We’re it I, I’d release it to him, and strap a gag order on any part of the report being released or published.

    That way, both sides get what they want; the report seen and contents sealed.

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