Press freedom activists have expressed concern at an attempt by an Illinois township to subpoena the records of a watchdog news site, and now that subpoena has been quashed by a county circuit court.
Algonquin Township sent a subpoena to Dropbox asking for a trove of information, including all history, content, comments and payments relating to the account of the Edgar County Watchdogs. The site is suing the township, alleging violations of the Freedom of Information Act, with claims it unlawfully failed to hand over information following requests.
The McHenry County Circuit Court on Feb. 11 granted an emergency motion to quash the subpoena after the news site argued it violates Illinois reporter's privilege, lacks relevance, is outside the scope of the lawsuit, and fails to comply with local rules.
Algonquin Township attorney Jim Kelly told the Cook County Record that it was quashed because it could not be served. He wrote to lawyers for the Edgar County Watchdogs last Friday reporting it was rejected and therefore could not be served.
"It’s very concerning whenever a news organization’s journalistic records are subpoenaed," Sarah Matthews, a staff attorney with the Washington DC-based Reporters Committee for the Freedom of the Press told the Cook County Record. "Just the spectre that a court may enforce a subpoena against a news organization can have a chilling effect on future sources who may have valuable information, but will be afraid to speak up."
Matthews said she is thrilled the court quashed the subpoena, but added that the fact it was issued in the first place has troubling implications, including that its issuing appears to go against Illinois' reporter privilege.
"This protects both confidential and non-confidential information," Matthews said, adding that the news organization invoked privilege when asking the court to quash.
Under the Illinois Reporter's Privilege, reporters are not required to disclose the source of any information unless a court finds that "all other available sources of information have been exhausted." Further, the "disclosure of the information sought is essential to the protection of the public interest involved." It is designed to allow reporters to reassure their sources that they will not be exposed.
The subpoena sent to Dropbox asked for all information relating to the creation of the account; payment details; all details of those with access; and all history, content and comments, among other information.
Kelly, the attorney for the township, said there was no purpose to the hearing Monday because he had already informed the website's lawyers that the subpoena could not be served. A letter published by Edgar County Watchdogs appears to show Kelly had a conversation with the attorney's for Edgar County Watchdogs at 4.50 p.m. last Friday.
"I advised you that the subpoena to Drop Box Inc. (sic) had been rejected and cannot be served," Kelly wrote. "You have threatened to file a motion to quash this subpoena. Such a motion would be a nullity as the Drop Box subpoena has been rejected, At this point there is no subpoena to quash."
The letter does not explain who, or what, rejected it, and how that led to the subpoena disappearing, Further, the McHenry County Circuit Court felt it was necessary to pursue having the subpoena quashed by the court.
Kelly added the site was told of the subpoena and given statutory required notice that it was sent, a claim that is disputed by Kirk Allen, founder of the Edgar County Watchdogs and a named plaintiff in the underlying FOI lawsuit.
"Our attorney was not notified of the subpoena as we outlined in our emergency motion to quash," Allen told the Cook County Record, adding he only found out about it on either Friday or Saturday. "When a public body goes after the records of a FOIA requester rather than comply with FOIA requests, it tells us how out of touch they are with our First Amendment."
The underlying lawsuit accuses Algonquin Township, including clerk Karen Lukasik, of refusing to reply to requests for information 16 times.
After the filing of the suit last April, Lukasik, in a text message to the Northwest Herald newspaper, stated, "This is just another political vendetta, which is wasting taxpayer dollars, and for what? What do the Edgar County Watchdogs have to do with Algonquin Township, and are they paying for this suit? I'd like to know who they have colluded with on the inside to file this."