URBANA — Cunningham Township has filed a complaint in Champaign County Circuit Court, saying the Urbana school district "willfully withheld" records the township requested using the Freedom of Information Act.
The township has asked for records of the school district's legal bills related to a lawsuit both public bodies are involved in. The suit is dealing with whether several Carle Foundation properties should be exempt from paying property taxes.
The township is asking the court to rule that the school district needs to provide unredacted copies of the records it's asked for, which include all of its legal bills related to the Carle case.
The township board approved filing the complaint in open session Sept. 24. The township is seeking a $5,000 penalty from the school district, as well as its legal feels relating to the FOIA complaint.
School district attorney Eugene Hanses did not return a message from The News-Gazette seeking comment.
The township filed two FOIA requests with the school district, one in July and one in September, both asking for bills related to legal services for the Carle case and meeting agendas and minutes in which the school board discussed and authorized what's called a counterclaim against the township as a part of the larger Carle case.
That case, which is also in Champaign County Circuit Court, concerns whether Carle is exempt from property taxes on several of its parcels in Urbana.
It lost its property tax exemption and started paying property taxes in 2004.
While it's paying property taxes now, the taxing bodies in Urbana are setting aside the money in case the court rules they have to pay it back.
Township Attorney Fred Grosser said Carle filed a complaint in the case saying the school district, the Urbana Park District, the city of Urbana and Cunningham Township "participated in causing Carle to lose its exemption." That violated a 2002 agreement that said Carle would pay money to local taxing bodies in exchange for their promising not to challenge its tax exemption status, Carle said when it filed the motion in 2010.
Grosser said the township wasn't involved in that 2002 agreement, though.
"The township knew nothing about it" until after Carle, the city, the school district and the park district had made the agreement.
The Cunningham Township and the city of Urbana have the same boundaries, and the city council members serve as the township's board of trustees.
In terms of the township and township assessor's involvement, " the only thing the assessor did and can do is assess property," Grosser said.
Carle had partial property tax exemptions on its properties, so they had to be assessed in order to figure out how much to charge Carle for portions of its properties that were not exempt, Grosser said.
The school district filed a counterclaim against the township in March, saying that if it was found liable for breach of contract and required to reimburse Carle for property taxes it's received, the township should have to contribute and pay damages. That's because the school district didn't authorize or direct the township assessor or township to put Carle back on the county's tax rolls, the counterclaim said.
The township responded to that counterclaim in court in May, denying that the township should have to pay a contribution to the school district.
Carle spokeswoman Jennifer Hendricks-Kaufmann said she has no comment on the township's FOIA complaint against the school district.
By filing a FOIA request itself, The News-Gazette obtained copies of both the township's requests and the school district's response letters. The News-Gazette also viewed copies of the materials the school district provided to the township.
Cunningham Township initially sent the school district a FOIA request July 25, asking for copies of legal bills and records of payment for legal services related to the Carle property tax exemption case.
After notifying the township that it needed more time to fulfill the request, the school district responded Aug. 8, saying it was providing "remittance copies" and "payment documents" to the township.
"Please note that the Remittance Copies have been redacted to omit titles for matters not requested in your request and/or because those redacted titles may contain or constitute confidential materials," its response letter from FOIA Officer Lori Johnson stated.
These documents included a list of what legal services were provided and their costs, for a given month. All other descriptions not related to the Carle case were blacked out.
The response also requested that the township let the school district know if the latter had misunderstood the request. However, additional requests could be "classified as an unduly burdensome categorical request" under the Freedom of Information Act, the letter continued.
"Additionally, please recognize that materials ... relating to the billing for this litigation are subject to redaction" because they relate to confidential attorney-client communication, and because the court case is still open.
"(The Freedom of Information Act) does not require the disclosure of privileged information," the letter stated.
The township followed that response with a letter Aug. 14, protesting the redacted documents the school district provided, saying the school district did not cite the law in its reasons for doing so.
"You acknowledge that you have itemized bills in the business office but refused to furnish those bills, after extending the time, claiming apparently that you do not understand our request for all the bills as asking for all the bills," said township Supervisor Carol Elliott in that letter.
She went on to ask for all itemized bills "by delivery today," and told the school district in the letter she thought it "strange" if the school district's attorney included legal advice in a bill.
"While it would not be my preference to litigate this, I am prepared to do so," Elliott wrote, adding that if the township filed a complaint in court and won, the Freedom of Information Act would require the school district to pay the township's legal fees, plus a fine between $2,500 and $5,000.
The school district responded the next day, with a letter that's marked in the school district's files, "hand delivered by (Superintendent) Preston (Williams)," which thanked the township for clarifying its request. The letter reiterated that the school district wanted the township to "advise us in the event you are seeking materials beyond those provided to you with our August 8, 2012, letter," stated the letter, which was signed by Williams.
"Additionally we asked for an opportunity to participate with you in a ... 'conference' to address the scope of any such request," the letter said. "In light of your August 14, 2012, reply, however, it appears that you are unwilling to participate with us in any such conference."
The school district told the township it would send the "details" pages for the Carle case later that week, "but please note they will require examination and evaluation to determine if they are exempt from disclosure" or needed to be checked for possible redactions. The school district again said it expected the bills would be subject to redaction.
"Your (Aug. 14) letter questions as 'strange' the possibility that bills include legal advice, but this comment seems to reflect an over-simplification and misunderstanding of the attorney-client communications privilege in this context," the letter said, referring to a specific binding opinion from the attorney general's public access counselor, and the fact that the request centers around a court case that's still open, and in which the township is also involved.
That opinion stated that while legal bills are not confidential, some may reveal privileged information by describing work attorneys are doing for a public body.
"Even in those work descriptions which could arguably reveal privileged information, however, other parts of the descriptions could be released without revealing the content of any substantive communication between (body) and its attorneys," the opinion stated.
The school district sent the township another letter Aug. 17, and indicated it was attaching billing records related to the Carle case.
It also noted that it was redacting information that contained explanations for legal fees that indicated matters discussed between the school district and its attorneys, and exempted by the Freedom of Information Act because of pending legal action.
Those documents redacted much information, except for generic descriptions, such as making phone calls, reviewing emails and other similar activities. For the most part, information about whom the school district's attorneys were calling or what topics they were working on were redacted.
The documents showed that school district attorney Hanses charges $225 per hour.
Elliott filed another FOIA request Sept. 25 for copies of "official agendas and minutes for any and all meetings" of the Urbana school board "where there was any discussion and authorization of the filling of the counterclaim against Cunningham Township" in the Carle court case.
The school district's Oct. 2 response noted again that both public bodies are involved in the Carle case, and to answer the request, "Urbana School District would be required to tell you if, when, and how it handled the subject of your FOIA Request. Urbana School district is not required to answer such questions or to advise you of the manner in which it is handling pending litigation," the response said.
The school board is allowed to go into closed session to discuss pending legal action, and the school district letter notes that it's not required to be any more specific about the reason for the closed session.
The school district provided meeting agendas and approved minutes for open sessions to the township.