Griffin: Carpentersville is 'violating' state law, attorney general says

By refusing to release the arrest report and accompanying video of a traffic stop involving a man who died less than 24 hours later at an Elgin hospital, Carpentersville is “violating” state law, Illinois Attorney General Lisa Madigan's spokeswoman said.

“Our advisory opinion concludes that the public body is violating (the state's Freedom of Information Act) by not disclosing the records,” said Madigan spokeswoman Natalie Bauer.

While it's rare for government bodies like Carpentersville to defy the attorney general's public records rulings, “it happens,” said Sarah Pratt, head of the attorney general's Public Access Counselor office.

That might be because the state FOIA law does not provide for sanctions or punitive action against government agencies, elected leaders or public employees who flout the law.

“FOIA is only as powerful as the attorney general enforcing it,” said Maryam Judar, executive director and community lawyer at the Elmhurst-based Citizen Advocacy Center. “It would be nice if there were some consequences, but in the end these governments are not going to do anything beyond what the law asks them to do.”

Even though Madigan's office — the state's top law enforcement office — has said the arrest report and video recordings are not exempt from the state's open records laws, there is nothing her office can do to compel Carpentersville to release the information.

Village officials are refusing to release the arrest report and video of 31-year-old Joshua Paul's traffic stop on Aug. 17. According to the village, the release would hinder the Illinois State Police Public Integrity Unit's investigation of Paul's death.

Village officials are defying a ruling by Madigan's office that stated information in the reports would not hinder any investigation. The Daily Herald sought assistance from the attorney general's office after a request for the records was denied. Nearly two months later, on Oct. 15, Madigan's office ruled that the village should turn over the records.

Village officials have said only that Paul was pulled over by police for an unknown traffic violation, was taken to Advocate Sherman Hospital in Elgin and died the next day. Kane County Coroner Rob Russell has not completed the death certificate, either.

Carpentersville spokesman Dave Bayless, a crisis management expert hired by the village to handle media calls about the case, said the village decided to defy the attorney general in deference to Paul's family and the officers involved to maintain the “integrity of the ... ongoing investigation.”

However, Paul's family's attorney, Brian Perkins, said he sought the same records and was denied by the village, though he did not appeal the decision to the attorney general.

The attorney general's office issues two kinds of rulings, neither carrying any consequences for those who fail to comply. The most common ruling is an advisory opinion, which was issued in the Carpentersville case. The only recourse if a government refuses to follow the ruling is to file a lawsuit.

The attorney general's office can also issue binding opinions, which ensure involvement of the attorney general's office in any future legal action if a government body refuses to abide by the ruling. Officials in Madigan's office said no binding opinion has been challenged in court.

“We're supposed to be an alternative to litigation,” Pratt said.

But binding opinions are rare, mainly because of the legal research required, she said.

In 2013, the attorney general's office issued 18 binding opinions. So far this year, 13 binding opinions have been issued. There were 15 in 2012, seven in 2011 and four in 2010, according to the annual report.

Meanwhile, requests to Madigan's office for open records assistance have leveled off. Some legal experts are concerned the tapering of FOIA denial appeals might signal the public's weariness to fight for access to records, because there is no recourse if attorney general's rulings are ignored.

“Some people are deciding they're going straight to court,” Judar said. “Perhaps there's a decreased interest because of the of the amount of time it takes for a reply and to come up with an outcome for each case.”

The attorney general's office handled 3,039 FOIA appeals last year after public records requests were denied by government agencies, and it issued almost as many rulings. That's about the same as 2012 when 3,119 appeals were handled by Madigan's office. That comes after several years of explosive growth in the number of appeals the office has received. Denial appeals grew anywhere from 22 percent to 88 percent each year since 2007, according to attorney general's office annual reports. But officials don't track whether the records sought were ever released.

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