Emails and text messages sent and received by Chicago aldermen on their personal accounts and devices generally may not be subject to disclosure under the Freedom of Information Act, a Cook County judge has ruled, partially thwarting an attempt by a Chicago lawyer to uncover what he believed were efforts by his neighbors to use connections to a Chicago alderman to allegedly improperly block him from obtaining a permit for a home improvement project.
Cook County Circuit Judge Celia Gamrath denied Ameer Ahmad’s request to force Chicago 1st Ward Alderman Joe Moreno and the city of Chicago to provide him access under the FOIA law to certain emails and text messages, which Ahmad believed would show Moreno had essentially allowed Ahmad’s neighbors to hold up the work on his home project and caused him to be fined by the city.
In her ruling, issued Nov. 28, 2017, Gamrath said she did not believe an individual alderman could be considered a “public body,” under the terms of the state’s FOIA law, and thus, unless an alderman had sent or received such messages as part of an official city action, their personal messaging accounts could not be considered public documents discoverable under FOIA.
Gamrath ruled the city of Chicago must turn over all “public records requested by Ahmad pertaining to public business related to Ahmad or his property … from July 1, 2014 forward, which were sent or received by Moreno during a city council meeting or forwarded to a quorum of city council.” That ruling was modified Jan. 25 to specify the records subject to FOIA also should include such messages sent or received during “any committees, subcommittees or other subsidiaries of the city council, of which Alderman Moreno is a member.”
“While aldermen provide a myriad of services for constituents and ward residents, this assigned responsibility does not transform them into an executive body or mayor of their wards, as Ahmad contends,” Gamrath wrote. “Their power lies collectively when acting as a part of city council. Otherwise, they have the same rights as an ordinary citizen, including the right to report a building violation. Unlike the mayor or commissioner, they have no direct authority over city employees or building inspectors nor the executive right to issue citations or grant or deny any Grant of Privilege.
“The ultimate authority lies with the commissioner and city council in passing a permit ordinance, not Moreno.”
The case had landed in Cook County court in late November 2016, when Ahmad, who then worked as a mergers and acquisitions attorney with the firm of Greenberg Traurig, of Chicago, filed suit in against Moreno and the city. Ahmad was announced Jan. 31 as a partner in the corporate and securities practice at the Chicago firm of Mayer Brown.
The lawsuit centers on a dispute involving Ahmad and his neighbors in the 1300 block of N. Leavitt in Chicago’s Wicker Park neighborhood.
Years earlier, Ahmad had purchased and indicated intentions to demolish a three-flat on the site and replace it with a “5,180-square-foot Parisian style mansion,” according to a 2012 report published by DNAInfo.com. That report indicated Moreno supported Ahmad’s plans.
However, Ahmad’s neighbors came to oppose the project, and purportedly complained about Ahmad’s project, allegedly accusing Ahmad of damaging their property. Following the complaints from his neighbors, who he said are either social friends or political supporters of Moreno’s, Ahmad said Moreno began to complicate the project, particularly frustrating Ahmad’s attempt to install a heated sidewalk by refusing to sign off on a so-called “grant of privilege” allowing the work.
Ahmad said others of his neighbors had installed similar sidewalk heating systems without first obtaining any such grants.
Ahmad said Moreno’s staff informed him the alderman would hold up his building permit until Ahmad resolved “alleged issues in a private dispute” with his neighbors.
Ahmad also alleged the city had issued him citations at the request of Moreno’s office, which, in turn, allegedly came at the urging of Ahmad’s neighbors.
In the fall of 2016, Ahmad said he asked City Hall and Moreno to produce Moreno’s emails and text messages concerning Ahmad’s construction projects, including those handled via “non-city accounts.”
However, the city and Moreno refused, prompting Ahmad’s lawsuit.
After nearly a year of court proceedings on the case, the city moved for summary judgment on the question of whether Moreno could be considered a public body under FOIA.
And the judge said he could not, saying Ahmad's argument "conflates perceived clout in a ward with executive authority." Gamrath pointed to two Illinois appeals court decisions which found similarly that a single alderman's communications weren't subject to FOIA, and noted the Illinois General Assembly has not broadened the law to open up an alderman's personal communications to public disclosure, "despite amending FOIA several times."
Judge Gamrath said her decision should not be taken to mean “a city employee (could) attempt to subvert the purposes of FOIA by using private devices.”
But, she said, allowing FOIA disclosure for an alderman’s personal communications “would effectively mean an alderman could not communicate with any constituent, ward resident or staff member without being subject to FOIA.”
“But if communications are received or created during a meeting or session of city council, forward to a publically issued electronic device, or sent to a quorum of city council, they are subject to FOIA because the individual alderman is then acting collectively as a public body,” she said.
Ahmad was represented in the action by attorneys Matthew Topic and Joshua Burday, of the firm of Loevy & Loevy, of Chicago.