From the day Chicago police officer Jason Van Dyke shot and killed Laquan McDonald in 2014, city officials have worked to keep records from the shooting secret.
Yet when journalists and other citizens sought help from the office of Illinois Attorney General Lisa Madigan – which is responsible for interpreting and enforcing the state’s Freedom of Information Act – the agency did little to ensure the materials were released to the public.
Over the last four years, reporters and citizen activists have filed at least 10 appeals with the attorney general’s office after Chicago officials blocked their requests for video, police reports, emails and other materials tied to the shooting, according to documents maintained by the office.
But most of the McDonald-related appeals dragged on for months or years – including one filed in 2015 that wasn’t closed until this fall – before the attorney general’s office took action. When it did, the city repeatedly ignored its decisions and resisted producing any records.
Together, the cases expose critical flaws in the Illinois Freedom of Information Act and its enforcement under Madigan, who helped write the current version of the law. She is leaving office in January after 16 years. Her successor, Kwame Raoul, has vowed to make FOIA enforcement a priority.
Maura Possley, a spokeswoman for Madigan, blamed “government offices that steadfastly refuse to follow FOIA” for blocking the release of records and hampering the public access counselor. The PAC is the office Madigan and her staff launched in 2010 to handle open-government cases.
“Under the statute, the goal of the Public Access Counselor is to help resolve disputes as an alternative to court, not to litigate every matter,” Possley wrote in a statement. “In the matter involving the Laquan McDonald shooting, it is clear that the Chicago Police Department was not going to release information without a court order.”
A spokesman for the city’s Law Department said the city receives thousands of FOIA requests a year and works to provide public records “in a timely manner.”
“As part of state law, requesters have several options if they feel their response should include additional or unredacted records, and the City works to resolve these differences as quickly as possible,” the spokesman, Bill McCaffrey, wrote in a statement.
McDonald’s killing highlighted the crucial importance of opening government records to the public. In November 2015, a judge ordered the release of the now-infamous video showing Van Dyke shooting McDonald 16 times as the teen appeared to be walking away — contradicting what police reported.
That set off a chain of events leading to Van Dyke’s conviction this year of second-degree murder, the recent trial of three other officers for conspiring to cover for him and the announcement by Mayor Rahm Emanuel that he wouldn’t run for re-election. When the Trump administration refused to push for reforms to the Chicago Police Department, Madigan’s office sued to make sure the plan was backed by a federal court order.
But that all happened despite the attorney general’s FOIA enforcement, not because of it. In fact, the office’s FOIA decisions may have ended up delaying justice in the McDonald shooting and costing taxpayers money.
1. The attorney general’s office rejected some FOIA appeals because of missed deadlines.
In January 2015, a producer for MSNBC submitted a FOIA request to the Chicago Police Department for copies of reports from the shooting and video captured by police car dashboard cameras. After a month, the department denied the request. Releasing the video could harm ongoing investigations into the shooting, police officials argued, and therefore the Freedom of Information Act entitled the department to keep it secret.
That April, a lawyer for NBCUniversal, the parent company of MSNBC, appealed to the PAC.
“The CPD has failed to provide any factual basis or explanation for its nondisclosure,” the NBC lawyer wrote.
The PAC is barraged with appeals of FOIA requests denied or ignored by the Police Department – more than 2,500 since 2010, ProPublica Illinois found in an investigation published in October. Only the Illinois Department of Corrections, inundated with requests from inmates, accounts for more.
On May 6, 2015, the PAC informed NBC that the network had missed a deadline to file its appeal within 60 days of being denied. As is required under the law, the case was closed.
2. The attorney general’s office then missed its own deadlines and allowed government bodies to ignore the law.
By then, other journalists were trying to get copies of the dashcam video, especially after city officials discussed it before the City Council signed off on a $5 million settlement with McDonald’s family.
In May 2015, a reporter for The Wall Street Journal requested the video and reports from the shooting. Police officials waited six days to respond even though the denial letter was almost identical to those sent to MSNBC and others seeking the records.
That June, a lawyer for the Journal asked the PAC for a review.
“Public scrutiny of such records is essential to maintaining confidence in the administration of justice,” attorney Jacob Goldstein wrote.
Goldstein had met the deadline for filing an appeal. Under the Freedom of Information Act, the PAC then had 60 days to issue a binding opinion, a ruling that all parties would have to follow unless they challenged it in court.
But the office showed little urgency. While requesters face a firm deadline for filing appeals, the law gives the PAC discretion in deciding how long to give government bodies to respond. Officials in the attorney general’s office say the law could be strengthened, though in this and many other cases, they chose to wait months for replies.
“CPD has not responded, and currently has a backlog of requests due to staffing issues,” an attorney in the PAC’s office wrote to Goldstein in July 2015. “I have requested that they expedite this response, and it will be forwarded to you upon receipt.”
The Police Department also denied a request for the video from independent journalist Brandon Smith and activist William Calloway. Instead of seeking a review from the PAC, Smith hired attorney Matt Topic and sued the department. Smith said he was able to file the lawsuit because he didn’t have to pay Topic up front; requesters can collect attorneys’ fees from government bodies found to have violated FOIA.
Topic has worked with ProPublica Illinois and many other news organizations on FOIA cases.
“I had already looked into the PAC and realized it was not as effectual as I needed to get stories out,” Smith said in an an interview.
Smith’s lawsuit attracted widespread media coverage; a judicial ruling was scheduled for November 2015.
Then, on Nov. 6, with the court hearing imminent, the PAC finally weighed in: The Police Department had improperly denied the Journal’s FOIA request. Plus, it had failed to cooperate with the PAC’s review, a point the Journal’s lawyer had made months earlier. Officials in the attorney general’s office say the timing of the decision had nothing to do with the court case.
The PAC urged the department to release the dashcam video and police reports. But after the PAC had missed the deadline for a binding order, the opinion was merely advisory.
That outcome wasn’t unusual. The PAC has issued binding opinions in less than half of one percent of the appeals it’s reviewed. And many of the PAC’s advisory opinions are simply ignored by government bodies – including, in this case, the Police Department.
The department couldn’t ignore the Nov. 19 ruling from Cook County Judge Franklin Valderrama, who ordered the department to release the dashcam video. The judge’s decision didn’t mention the opinion from the attorney general’s office.
The Journal, MSNBC and other media organizations received copies of the video when the city released it a few days later. Still, it was this October, almost three years later, when the PAC followed up with MSNBC about its second, long-stalled appeal, records show. A lawyer for the network confirmed that it already had the video, and the case was officially closed.
3. The attorney general’s office repeatedly declined to use its full authority to order the release of public records.
After the release of the video, the city received a flurry of new FOIA requests related to the shooting. On New Year’s Eve, when audiences are often tuned out, the city released hundreds of pages of emails about the McDonald shooting. Many exchanges among top city officials were blacked out. In January 2016, NBC 5 producer and investigator Don Moseley asked the PAC to review the redactions in just one of the emails, arguing that “the public has an inherent right to know what senior officials in the office of Mayor Rahm Emanuel knew at the time regarding video of a fatal police shooting.”
The PAC sided with Moseley that spring and urged the city to turn over an unredacted copy of the email. But it was only an advisory opinion, and weeks passed before Moseley and his colleague, reporter Carol Marin, finally saw a full copy of the email.
It left them wondering why the city had redacted it in the first place. The message was a recitation of facts, including the name of the attorney hired by McDonald’s family, but it included nothing damning, revealing or even newsworthy.
“We looked at it and said, ‘Why would you fight that one?’” Marin said. “It was wallpaper.”
4. When the attorney general’s office did issue a binding opinion, it was challenged in court.
In January 2016, a producer for CNN sent the Police Department a FOIA request for emails about the shooting from Van Dyke, his partner and other officers. In addition to official police emails, CNN sought messages from private email accounts.
That summer, after CNN appealed to the PAC, police officials conceded that they hadn’t attempted to look through the personal email accounts of Van Dyke or the other officers. They argued they shouldn’t have to, since those messages weren’t public records.
The PAC disagreed. In August 2016, the office issued a binding opinion in CNN’s favor, ruling that emails on personal accounts that pertain to public business are public. The Police Department was ordered to search the officers’ personal email accounts.
Instead, the city sued – and, a year later, in September 2017, lost.
“Government operations in a free society must not be shrouded in secrecy,” Cook County Judge Pamela McLean Meyerson wrote in her ruling.
Yet CNN never received the emails at the center of the battle. Last March, CNN went back to court to force the city to comply with the judge’s order. But the city argued that all it could do was ask the officers to have their personal email accounts searched. Either individually or through attorneys, each officer either refused, denied having any relevant messages or simply ignored the request.
5. As the city continues to block many FOIA requests, some journalists are bypassing the attorney general’s office and turning to the courts – which costs taxpayers money.
This month, Lucy Parsons Labs, a nonprofit focused on police accountability and transparency, sued the Chicago mayor’s office for refusing to release a copy of its plan to respond to potential protests after the Van Dyke verdict.
Since 2013, as more journalists have turned to the courts for help, the city has paid more than $1 million in attorneys’ fees in FOIA cases.
Freddy Martinez, the Lucy Parsons director, says he sees little point in turning to the attorney general’s office because the process takes too long and often doesn’t produce records.
“Going to the PAC is just not an option for us anymore,” he said. “Our main strategy is always to sue for records. And it’s a shame because it costs
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