EDGAR CO.—Former Richland County resident and current Edgar County Watchdog John Kraft has scored a victory in Edgar County Circuit Court that should send a message to stubborn public bodies who think their business isn’t public.
Kraft was forced to file a miscellaneous remedy case in Edgar in October after the Clark-Edgar Rural Water District (CERWD) not only refused to answer a Freedom of Information Act (FOIA) request issued by the Edgar County Watchdogs (a group of two that Kraft, along with local Kansas man Kirk Allen, formed almost two years ago when they became aware of the abject and rampant corruption plaguing their county), but attempted to pass off an invoice to Kraft, a bill incurred by the CERWD when they sought additional assistance for the location of the document FOIA’d for in the first place.
Bob Colvin, at left, became an obstacle to overcome when Watchdog John Kraft issued a FOIA for documents to a water district Colvin had worked for.
What Watchdogs discovered
The matter came to the fore when the Watchdogs, providing a crucial public service to the taxpayers of Edgar and surrounding counties, began investigating the doings of the CERWD as a taxpayer-supported public body—and what exactly the water district was doing with the taxpayers’ money they were collecting.
Through thorough investigation of available paperwork, attending public meetings, and discussing the public’s run-ins with problems the CERWD created for them (such as the entity collecting water tap-on fees but never providing water service), the Watchdogs discovered many apparent inappropriate uses of tax money by the service, the least of which resulted in a couple of people seated on the district’s board repeatedly for the district’s existence (22 years, enough time to allow corruption to fester) and taxpayers’ money being used to fund board gift-giving and get-togethers (food and drink) at various times over the years.
This abuse of funds developed because in more than two decades, there was literally no oversight as to what the board was doing. Board members were appointed by the two counties’ boards then left to their own devices.
The Watchdogs successfully circulated a petition for ballot access for a referendum to be placed before the voters in the two counties in November, forcing the trustees of the CERWD board to be elected rather than appointed.
Met with obstinance
FOIAs submitted to CERWD were therefore met with obstinance by the board.
Following several weeks of looking into the doings of this board, on September 17, Allen issued a FOIA to them asking for a copy of the advertising bids published in the Decatur Herald paper in March of 2008; a copy of an email sent to former state senator Roger Eddy on or about May 8, 2008 for the overall CERWD map; and a payment of $52.50 paid for the email (italics ours) according to an invoice from Paris-based engineering group Francis Associates as sent by a T. Turner.
A week later (Sept. 24), Kraft submitted a FOIA to CERWD seeking access to the FOIA and responsive documents to Allen’s FOIA…since none had been forthcoming.
On Sept. 26, CERWD responded to Kraft’s FOIA with a document not requested, and failed to provide requested documents, in direct violation to Illinois’ Freedom of Information Act request.
Pursuant to the law, Kraft pointed out, that was considered a denial to the requests. He pointed this out to them and advised them that he would take actions necessary to have his FOIA request fulfilled. But as of October 3, 2012, they had not provided any records in response to the Sept. 24 request.
Denied right to inspect
Therefore, Kraft took civil action in Edgar County court, alleging in a single-count filing that he had been “irreparably harmed by CERWD’s failure to produce the requested records, as they were denying his legal right to inspect public documents.”
He filed the miscellaneous remedy suit against CERWD, asking that they be declared by a judge in violation of the Illinois FOIA; that they be prevented from continuing to withhold access to any and all non-exempt public records to his request; that they prepare an affidavit declaring that they have fully and completely complied with his Sept. 24 FOIA request; that they prepare an affidavit identifying with specificity any and all public records responsive to his FOIA that are claimed to be subject to legal exemption from disclosure and identify the reasons for the exemption claim; and that he be awarded reasonable attorney’s fees, costs and other such relief the court found just and equitable.
The scam artist known as Bob
The documents were being sought because of ongoing investigation into what’s turning out to be one of Edgar County’s, and indeed perhaps all of southeastern Illinois’, scam artists, Bob Colvin.
Colvin, as outlined in the pages of Disclosure Heartland for months, puts himself forth as an engineer when he is NOT an engineer as confirmed by personnel at the Illinois Department of Professional Regulation.
Nevertheless, his company, Francis Associates, does engineering work for various entities, many of the taxpayer-supported such as CERWD, in the area, reaching as far south as Lawrence County in recent months.
In the course of their investigation into Colvin, the Watchdogs came across his involvement with CERWD, and began FOIA-ing for documentation…which is where the FOIA responses dried up.
When CERWD brought in an attorney to actually fight the FOIAs the Watchdogs were submitting to them (where they pertained to Colvin and Francis Associates, as well as the already-confirmed-slimy former politician Eddy), and submitted a bill to Kraft for the attorney’s fees in looking into the FOIA matter, that’s when things got ridiculous, and Kraft felt he had to file something in court in order to make it stop.
Kraft’s suit was filed not only against the CERWD, but also against Kevin Conover, who was the entity’s official “FOIA officer” (something the state requires every public body to now have; a FOIA officer must know and understand Illinois’ FOIA law and must help that public body comply).
That the CERWD already had a FOIA officer but sought legal counsel to assist them with a FOIA, then attempt to charge the person requesting the documents for the attorney’s efforts, was the height of arrogance….and, perhaps, fear.
Charging (”invoicing”)
CERWD addressed the issue in their response to Kraft’s filing.
In a motion to dismiss filed November 7, their attorney, Richard Bernardoni, stated that Kraft’s motion was insignificant in that it was based “upon the assumption that the CERWD cannot request reimbursement for costs incurred to respond to” a FOIA.
Bernardoni cited the FOI Act and the section that authorizes a public body to charge a fee to reimburse it for the actual cost of reproducing and certifying public records.
An affidavit by Conover stated that the water district didn’t have the requested records in its possession and had to contact Colvin to obtain a copy, and that Colvin consequently “invoiced” (charged) the CERWD for his time in obtaining the records. CERWD in turn “invoiced” (charged) Allen, and “Allen failed to pay the invoice and CERWD has not been reimbursed for its cost in reproducing the records.”
Colvin also submitted an affidavit stating that Francis Associates “invoiced” (charged) CERWD $76 “for its services in locating the records.”
All of this was done in spite of the fact that in the FOI Act, it clearly states that “a public record that is not in the possession of a public body but is in the possession of a party with whom the agency has contracted to perform a governmental function and is not otherwise exempt under this Act, shall be considered a public record of the public body, for purposes of this Act.”
Apparently, either the CERWD conveniently forgot this fact, or never knew it.
Judge knows, though
However, the judge in the case apparently knew it, which was what counted in the end.
With Kraft having successfully presenting his side pro se (without an attorney), providing merely documentation of the Illinois law that lays out what a public body may and may not charge for providing copies of material requested under the FOIA, Judge Matt Sullivan ruled on Dec. 11 that CERWD’s motion to dismiss would be denied.
Without the judge having to provide further elaboration, he allowed the law to speak for itself: That the CERWD not only has to provide response to any unanswered FOIA, but that they were wrong in asking for money under any circumstances from anyone.
This valuable lesson will probably be overlooked by the majority of public bodies in both counties, who seem to have come to be under the impression that they don’t have to answer to the taxpayers when the taxpayers ask questions of them.
However, it sets a stellar precedent for the Watchdogs, one of whom (Kraft) will likely be receiving reimbursement for court costs and other fees associated with the course of having to litigate to uphold a state law.
Most importantly, however, is that a public body who has been operating in relative secrecy for two decades is now going to be exposed to sunlight, and any inappropriate actions having been taken with taxpayers’ money (such as backdoor deals with Colvin, evidence about many of which are now being uncovered) will be brought to the fore…perhaps resulting, as has been the case only recently (in Bridgeport, with mayor Max Schauf’s federal case), in criminal charges at a level that the public bodies can’t easily get out of.