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Out Here: Public records request yields threat

Published: Thursday, July 24, 2014 5:30 a.m. CST • Updated: Friday, July 25, 2014 4:34 a.m. CST

It's always worth repeating the basics about the state Freedom of Information Act: No special form is needed. You can make your request on a cocktail napkin. You can send it by email. You don't need to show up in person. No legalese required.

The idea behind FOIA is to make it easy for ordinary people to find out about their government. Occasionally, you'll hear agencies complain about the law. But they can avoid some of the work associated with it by posting as much information as possible online.

In this high-tech age, some entities still put up hurdles to information. Recently, I was looking through last year's minutes from Avon Township and came across a glaring example of such hurdles.

In May 2013, Kim Kearby, a retired teacher from Round Lake, asked for information on former township supervisor Sam Yingling's expenditure of $541 at Buffalo Wild Wings, among other things.

Kearby told township trustees at a meeting the next month he was only "exercising his rights for good government," noting that the then-township clerk accused him of impersonating an attorney for asking questions under the guise of a Freedom of Information Act request, according to meeting minutes.

About a month later, the trustees appointed Kearby's wife, Jeanne Kearby, as clerk.

Recently, I filed a Freedom of Information Act request, seeking all of the information from Kearby's request and Avon's responses. In those documents, then-Clerk Elona Hamilton warned Kearby that he was violating the law by impersonating an attorney and could be charged criminally.

Hamilton was appointed only a few months before and lost to Patricia Smart in the April 2013 election. Soon after, Smart resigned because she moved out of the township. Jeanne Kearby was appointed.

In September, Kim Kearby died.

None of the documents released by the clerk's office, now run by Kearby's wife, indicated that her husband posed as an attorney.

In a May 17, 2013, letter, Hamilton wrote, "(Y)ou have been asking directed questions under the guise of FOIA, instead of simply asking for public records."

She then cited the law against impersonating an attorney.

"The township has warned one of your group that we will not be proceeding with charges, that we did not see this as intentional. Further FOIA requests from your group containing interrogatories will only lead us to believe that you are aware of what you are doing, but also force us into the position of taking action."

In an interview, the township's then-attorney, Tom Leverso, said the clerk was justified in making the accusation, although he declined to provide details.

Hamilton told me that the wording of the letter was at the attorney's advice.

"It was at a point where we were continually harassed by FOIA because of the election. I went to the township attorney. He gave me the verbiage," she said.

In his response to Hamilton on May 23, 2013, Kearby denied the allegation.

"I do not know if it was a compliment or an insult to say I was impersonating a lawyer, so let me clarify. I am not a lawyer nor am I impersonating one. I am a citizen looking at how our government officials are spending taxpayer money," he wrote in a letter to Hamilton.

I have seen no evidence that Kearby posed as an attorney. Some of his requests for information contained lists of questions, but that doesn't mean he was impersonating an attorney.

It is not unusual for an agency to see more FOIA requests before an election, when people become more interested in government. And, yes, some requests are for political advantage. But does that give officials license to threaten criminal action?

David Giuliani is news editor of Lake County Suburban Life. He may be reached at 847-231-7524 or dgiuliani@shawmedia.com.

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