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Mayor Emanuel's FOIA policy: Don't ask because we won't tell

As a Chicago parent discovered, city officials can't hand over records if they've already destroyed them.

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As we approach the midpoint of Mayor Emanuel's first term, I think I've discovered one of his greatest legacies to Chicago, right up there with dismantling public education and making Mayor Daley's god-awful parking meter deal even worse.

The mayor is also undermining the Freedom of Information Act, so that it's next to impossible for ordinary citizens to secure information showing how the government reaches decisions that affect their lives. The mayor and other officials are then free to do pretty much anything they want without fear of scrutiny.

Getting around the FOIA isn't as easy as it looks. The law requires that public officials share records generated by public bodies. In fact, transparency is one of those good-government principles that almost all elected officials feel compelled to endorse, even if it's the last thing they actually want to do.

In his case, Mayor Emanuel boasts of running "the most open, accountable, and transparent government Chicago has ever seen."

Meanwhile he's invented one of the great FOIA dodges of all time: I'd give you the stuff you want, but we threw it out.

That's what has emerged from the twists and turns of a FOIA request made in February 2012 by a north-side public school parent named Glenn Krell.

As you may recall from the first time I wrote about his case, Krell sought records from the Chicago Public Schools related to Mayor Emanuel's longer-school-day mandate.

As you undoubtedly know, the mayor extended the class time in public schools by about an hour without offering enough resources to help use the time effectively. Many schools were then forced to fill it with study halls, where teachers are supposed to provide one-on-one tutoring to 30-some kids. It works out to a couple minutes of tutoring apiece. Great program, Mr. Mayor.

Krell figured CPS had done research on the longer school day because, like every parent in the system, he'd received a letter from Jean-Claude Brizard, then the CEO, claiming that "our elementary school students are receiving 22 percent less instruction time than their peers across the country." So he sent CPS a FOIA request asking for "the reports, statistics, comprehensive city-by-city analysis and other documents that back up the statement by Mr. Brizard."

CPS responded that "the district does not maintain any documents responsive to your request."

Krell appealed to Attorney General Lisa Madigan's office because that's what the law says you should do if you think you're getting stonewalled on a FOIA request.

The longer-school-day records weren't all he requested from CPS. Krell also sought information regarding "selective enrollment tiers."

This has to do with CPS's effort to rank every neighborhood by socioeconomic factors in order to guarantee diversity in limited-enrollment high schools like North Side and Payton. The purpose is to make sure kids from low-income neighborhoods get a shot at admission to the high-performing schools.

For the last year or so, many parents have complained that the formula seems arbitrary and unfair. So Krell sent a FOIA seeking "reports and analyses used to formulate the selective enrollment tiers."

He knew CPS had lots of information on this matter because he'd read about it in the Tribune. In that article, CPS officials boasted about how they'd left no stone unturned in their effort to make the selection process as fair and objective as possible. They said the process considers data such as home-ownership rates in the students' census tracts and the share of homes where English isn't the primary language.

But as with the longer-day FOIA, CPS responded that "the documents that Mr. Krell has requested are not mandated for retention."

Which is not the same thing as saying they never existed. It just means that CPS is claiming they're not required to keep the stuff. Krell stressed that point in his appeal.

Eventually, lawyers for the attorney general's office got around to pressing CPS officials. As one of the attorneys wrote in a report on the matter: "Specifically, we asked that CPS clarify whether or not the requested documents had ever existed or had once existed but were destroyed."

Excellent questions! And the response?

"CPS responded [by] stating that the records requested by Mr. Krell 'have never been maintained by [CPS] and do not exist.'"

As a result, the attorney general's office ruled it can't force CPS to turn anything over because "a public body's determination that it has no documents responsive to a FOIA request is a permissible basis for denying such request."

In short, case closed.

Well, with all due respect to the lawyers in Lisa Madigan's office, this might just be the worst case of examination I've seen since Austin Pendleton's stuttering lawyer in My Cousin Vinny.

CPS officials didn't answer the questions Madigan's office asked them. They were asked point blank if the documents ever existed, and they responded that they haven't maintained them. Which is not the same thing as saying the documents never existed at all.

"That is what lawyers would call a nonresponsive answer," says Jeffrey P. Smith, a public interest attorney who's battled his hometown of Evanston on more than one records issue over the years. "The AG didn't ask CPS if they maintained the information—they asked if they ever had it."

The response from CPS officials strongly suggests they destroyed the records.

Smith says that if someone responded that way in one of his cases, "I'd file a motion to compel them to answer."

There you go, Attorney General Madigan—get those lawyers to work!

Krell says he plans to ask Madigan's office to reconsider its decision and pursue the case further.

In any event, here's where we stand now. CPS officials could be telling the truth to the attorney general and have no information to offer Krell, in which case there's no analysis at the heart of the mayor's important policy initiatives. That's something to think about as he shoves his new parking meter deal down our collective throats.

Another possibility is that CPS officials aren't telling the truth to the AG, and there are reports and studies they don't want anyone to see.

Or they've destroyed key documents.

You, the people, get to decide what's worse.

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