Elmwood Park Public Library Director Michael Consiglio is hiding the “legal” justification for charging the Elmwood Park Advocate and other resident-led organizations for meeting room use.
It's unlawful because the Illinois Freedom of Information Act is a law, and there is a body of jurisprudence and binding opinions that say what we asked for is not exempt from disclosure. —Kevin Gosztola
But you would have to prove that in court correct? That they had actually violated this. That's why I am asking if you can site what it is in the FOIA law it is they have violated.
A common phrase used by attorneys is that attorney-client privilege cannot be used as both “a sword and a shield.” In litigation, this means that if you are going to rely on a formal legal opinion, you have to disclose it - you cannot use it as a “sword” to refute something, then “shield” the opinion from disclosure. The IL FOIA law - which is what would apply here, not the Federal FOIA law - states attorney-client communications are exempt when they “would not be subject to discovery in litigation.” Also, the IL FOIA law states “Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt.” In other words, the library has the burden of proving that the opinion is exempt from disclosure, not the Advocate.
I am including a link to IL-specific law as a correction to my former post. Sorry about any confusion caused by the federal information.
Hopefully, the outreach to the Illinois Attorney General will give The Advocate some closure.
However, regarding the comment that it is unlawful, it does not seem as if it has reached an unlawful point yet. If the burden of proof cannot be presented, and they do not share the info, then it would have reached that point.
Well hopefully you have the legal proof to fight that with the IL AG. I am sure when you get the response you will share It in as best a way as is allowed in the public domain.
Excellent reporting. Thank you.
Glad you support what we're doing. —Kevin Gosztola
This guy seems to have issues with you, have you tried talking to Skip about what is going on?
Not sure how we'd go about talking to Skip, but thanks for the suggestion. —Kevin Gosztola
I mentioned if you pushed the wrong way in this town eventually your going to hit a wall.
I think you have hit a point were it is going to become financially difficult on the Advacate.
This I feel is the start of a long line of hurdles your going to start encountering locally.
What law would it be they are violating that makes it illegal?
Also what options at this point do you have?
Just as a note most of what had been free rooms across public building are moving to a pay to use protocol to cover I creasing costs I would guess.
I am not sure In you case I do think that this is I. Some way realitory but that is hard and expensive to prove In court
It's unlawful because the Illinois Freedom of Information Act is a law, and there is a body of jurisprudence and binding opinions that say what we asked for is not exempt from disclosure. —Kevin Gosztola
But you would have to prove that in court correct? That they had actually violated this. That's why I am asking if you can site what it is in the FOIA law it is they have violated.
Based on the following
FOIA.gov - Freedom of Information Act: Frequently Asked Questions (FAQ) https://share.google/NGPi49NUHL8upPwEa
Specifically section 5 under what is exempt
Exemption 5: Privileged communications within or between agencies, including those protected by the:
Deliberative Process Privilege (provided the records were created less than 25 years before the date on which they were requested)
Attorney-Work Product Privilege
Attorney-Client Privilege
The awnser given via the legal representation is completely legitmate.
Which is why I asked for clarification. If you can prove it is not based on that I am sure through appeal you can get the info.
A common phrase used by attorneys is that attorney-client privilege cannot be used as both “a sword and a shield.” In litigation, this means that if you are going to rely on a formal legal opinion, you have to disclose it - you cannot use it as a “sword” to refute something, then “shield” the opinion from disclosure. The IL FOIA law - which is what would apply here, not the Federal FOIA law - states attorney-client communications are exempt when they “would not be subject to discovery in litigation.” Also, the IL FOIA law states “Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt.” In other words, the library has the burden of proving that the opinion is exempt from disclosure, not the Advocate.
I am including a link to IL-specific law as a correction to my former post. Sorry about any confusion caused by the federal information.
Hopefully, the outreach to the Illinois Attorney General will give The Advocate some closure.
However, regarding the comment that it is unlawful, it does not seem as if it has reached an unlawful point yet. If the burden of proof cannot be presented, and they do not share the info, then it would have reached that point.
Thanks for the clarification on the comment.
https://www.ilga.gov/Legislation/ILCS/Articles?ActID=85&ChapterID=2
The request was denied. It was wrong for them to invoke the exemption. They are unlawfully claiming the exemption. —Kevin Gosztola
Well hopefully you have the legal proof to fight that with the IL AG. I am sure when you get the response you will share It in as best a way as is allowed in the public domain.