IN THE CIRCUIT COURT OF THE TWENTY-SECOND JUDICIAL CIRCUIT McHENRY COUNTY, ILLINOIS JOHN PETER GONIGAM, individually, ) and

the FIRST ELECTRIC NEWSPAPER, ) LLC, an Illinois limited liability corporation,) ) Plaintiff, ) ) vs. ) ) OFFICE OF THE SHERIFF OF ) McHENRY COUNTY; KEITH NYGREN, ) as Sheriff of McHenry County, Illinois; ) DONALD B. LEIST, as the Equal ) Employment Officer for the McHenry ) County Sheriffs Office; and JAN WEECH, ) as Freedom of Information Officer for the ) McHenry County Sheriffs Office, ) ) Defendants. )

Case No.

PETITION FOR DECLARATORY AND INJUNCTIVE RELIEF Plaintiffs, JOHN PETER GONIGAM (Gonigam) and the FIRST ELECTRIC NEWSPAPER (Newspaper) (together, the Plaintiffs), by and through their undersigned attorney, Mary E. Gardner, P.C., pursuant to Section 2-701 of the Illinois Code of Civil Procedure, 735 ILCS 5/2-701, and Section 11 of the Illinois Freedom of Information Act, 5 ILCS 140, et seq. (either FOIA or the Act), requests this Court to enter an order declaring that the OFFICE OF THE SHERIFF OF McHENRY COUNTY (the Sheriffs Office); KEITH NYGREN, Sheriff of McHenry County, Illinois (Nygren); DONALD B. LEIST, as the Equal Employment Officer for the Office of the Sheriff of McHenry County, Illinois (Leist); and JAN WEECH (Weech), as Freedom of Information Officer for the McHenry County Sheriffs Office (together, the Defendants), are in violation of the FOIA, for refusing to comply with a

request for information and documents and, further, enjoining them from continuing to withhold the requested documents and requiring them to produce the requested records. In support of their Petition, the Plaintiffs state: 1. 2. Gonigam is an individual person, residing in Kane County, Illinois. Gonigam is the owner and publisher of the Newspaper, a limited liability

corporation organized pursuant to the laws of the State of Illinois, having a principal place of business in Kane County, Illinois. 3. The Newspaper is a news-gathering organization, the only online member of the

Illinois Press Association, covering public events and news in and around Algonquin, Lake In The Hills and Huntley, Illinois. 4. Defendant Office of the Sheriff of McHenry County (the Sheriffs Office) is a

public body located in McHenry County, Illinois. 5. 6. Defendant Nygren is the duly-elected Sheriff of McHenry County, Illinois. Defendant Leist is the Equal Employment Officer for the McHenry County

Sheriffs Office. 7. Defendant Weech is the Freedom of Information Officer for the McHenry County

Sheriffs Office, and is charged with responding to requests for information made pursuant to the FOIA. 8. the Act. 9. Nygren, Leist and Weech are public employees in the Sheriffs Office. The Sheriffs Office is a public body within the meaning of 5 ILCS 140(a) of

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10.

Andrew Zinke is the Undersheriff of McHenry County and Nygren's endorsed

successor to become Sheriff in 2014. 11. On October 23, 2012, former McHenry County Sheriff's Office Narcotics Chief,

John Koziol, filed a petition with the McHenry County Circuit Court seeking appointment of a Special Prosecutor to investigate his charge that Zinke had compromised a U.S. Drug Enforcement Agency investigation by telling Nygren and Zinke-campaign-donor Briane Goode that DEA agents had been tracking a shipment of marijuana destined for Goodes Crystal Lake business. 12. On November. 2, 2012, Circuit Court Judge Thomas A. Meyer denied that

request, ruling that the State's Attorney was available to investigate the matter if he wished to. 13. On December. 19, 2012, McHenry County States Attorney Louis A. Bianchi

announced that even if Koziol's allegations about Zinke were true, they didn't violate Illinois Law but that Nygren might investigate to see if they constituted a violation of Sheriff's Office General Orders. 14. On January. 22, 2013, in an apparently exclusive interview with the Northwest

Herald newspaper, Nygren announced such an investigation had found Zinke hadn't violated General Orders. 15. On January 24, 2013, Plaintiff filed, via e-mail, its request that the Sheriff produce

to it, pursuant to the Act a copy of the report of the Sheriffs Office Internal Investigation into whether Undersheriff Andrew Zinke violated any general orders in conveying information to Brian Goode as alleged in Sgt. John Koziols petition for a Special Prosecutor. (the FOIA request) -3-

16.

On January 31, 2013, Weech denied the request. Copies of the denial e-mail, with

the original FOIA request below it in the e-mail trail, are attached as Exhibit A. 17. In denying the Plaintiffs FOIA request, the Sheriffs Office relied on the Acts

exemption from disclosure for Records relating to a public bodys adjudication of employee grievances or disciplinary cases. . . . 18. On February 5, 2013, the Plaintiff requested a review of the Sheriffs Offices

denial by the Public Access Counselor of the Illinois Attorney Generals Office of an Illinois Freedom of Information Act denial. A copy of the request for review is attached as Exhibit B. 19. The Office of the Attorney General of Illinois requested by letter dated February

14, 2013 that the Sheriffs Office provide information for an inquiry and specifically requesting a detailed explanation of the legal and factual basis for the denial. A copy of that letter is attached as Exhibit C. 20. Leist, calling himself the Legal Affairs Officer for the Sheriffs Office,

responded by letter dated February 27, 2013 to the Assistant Attorney General, relying only upon the assertion that the requested materials were exempt as records relating to a public bodys adjudication of employee grievances or disciplinary cases. . . . A copy of that letter is attached as Exhibit D. 21. The Sheriffs response to the AGs request for more information, etc. disagrees

with the AGs interpretation of the Act. 22. In the course of responding to the AGs request, Leist disclosed that he personally,

for the Sheriffs Office, conducted an investigation of Undersheriff Zinke.

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23.

Leist further provided the AGs office with a copy of an audio disc that contained

an interview with two deputy sheriffs. 24. The records of the investigation, including the audio disc interviews, are public

records within the meaning of 5 ILCS 140(c) of the FOIA. 25. The records of the investigation, including the audio disc interviews, are not

records relating to a public bodys adjudication, even when those records may have been relied upon in the course of an adjudication. 26. On March 4, 2013, the AGs office transmitted the Sheriffs response to the

Plaintiff. A copy of that letter is attached as Exhibit E. 27. On March 12, 2013, the Plaintiff responded, observing that Leist still failed to

demonstrate that an adjudication had occurred. A copy of that response is attached as Exhibit F. 28. Thereafter, the AGs office asked, via e-mail, the Sheriff for an explanation of the

evolution of the subject investigation. 29. Leist responded on March 19, 2013, outlining the evolution of the Sheriffs

investigation into Undersheriff Zinkes conduct. A copy of that letter is attached as Exhibit G. 30. It is clear from Leists March 19, 2013 letter that the Sheriffs Office conducted

an investigation into not only Koziols charges but extending to any violation of any McHenry County Sheriffs General Orders. 31. Leist disclosed that, based on that investigation, the Sheriff, by himself,

determined that the allegations against Zinke were not sustained. 32. On March 22, 2013, the AGs office again gave the Plaintiff an opportunity to

reply to the Sheriffs March 19th letter. -5-

33.

On March 28 Plaintiff replied that Leist's March 19 letter, outlines what is

obviously an ad hoc process totally inconsistent with the term adjudication. A copy of that email is attached as Exhibit H. 34. The Sheriffs Office has never provided any detailed factual basis for its claim

that the requested records were exempt because an adjudication of the allegations against Undersheriff Zinke occurred. 35. The Act, at 5 ILCS 140/9, provides, in pertinent part:

(a) Each public body denying a request for public records shall notify the requester in writing of the decision to deny the request, the reasons for the denial, including a detailed factual basis for the application of any exemption claimed, and the names and titles or positions of each person responsible for the denial. Each notice of denial by a public body shall also inform such person of the right to review by the Public Access Counselor and provide the address and phone number for the Public Access Counselor. Each notice of denial shall inform such person of his right to judicial review under Section 11 of this Act [5 ILCS 140/11]. (b) When a request for public records is denied on the grounds that the records are exempt under Section 7 of this Act [5 ILCS 140/7], the notice of denial shall specify the exemption claimed to authorize the denial and the specific reasons for the denial, including a detailed factual basis and a citation to supporting legal authority. Copies of all notices of denial shall be retained by each public body in a single central office file that is open to the public and indexed according to the type of exemption asserted and, to the extent feasible, according to the types of records requested. 36. The denial of the FOIA request failed to provide specific reasons for the denial,

including a detailed factual basis and a citation to supporting legal authority, as the Act requires. 37. The Defendants position that an adjudication occurred is at best conclusory and

the Defendants have failed to provide any factual basis for that conclusion.

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38.

On May 1, 2013, the AG issued a determination letter, finding that the Sheriff

violated FOIA by withholding investigatory records that Plaintiffs requested and finding that the Sheriffs Office did not conduct an adjudication and is required to produce the requested records. A copy of that letter is attached as Exhibit I. 39. After his receipt of the AGs May 1st determination letter, Plaintiffs left messages

with the Sheriffs Secretary and Zinke's voice mail Office on May 3, 2013 asking when the requested materials would be produced. 40. On May 6, 2013, Gonigam sent to Weech and Liest, via e-mail, another request

asking when he would be able to review the requested materials. A copy of that request is attached as Exhibit J. 41. The Defendants have failed, refused and continue to refuse to respond

to the telephone messages and e-mails or produce the requested documents. 42. Defendants refusal to comply with the Attorney Generals order, constitutes a

willful and intentional violation of the FOIA. 43. Furthermore, On June 10, 2013, Plaintiff Gonigam submitted an FOIA request to

the Sheriffs Office, requesting the audio disc containing an interview with two deputy sheriffs, as referenced in the AGs May 1, 2013 determination letter. 44. On June 14, 2013, Weech, on behalf of the Sheriffs Office, denied that request,

claiming exemptions both as records relating to adjudication of employee grievances or disciplinary cases and because it is impossible to protect the identity of a law enforcement officer from an audio tape, even though the Attorney General had already ruled that the adjudication

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defense was invalid. A copy of that e-mail denying the FOIA request, showing the initial FOIA request in the e-mail trail, is attached as Exhibit K. 45. The audio tape is part of investigatory materials and not protected by the FOIA

exemption for adjudication since, as Sheriff's responses to the AG demonstrate, and that office concluded, there never was an adjudication. 46. If the identity of testifying officers cannot be protected on disclosure of the audio

tape, then Plaintiffs would accept an transcript of the audio tape that could be redacted to protect the identity of the law enforcement officers. 47. Providing Plaintiffs with a transcript of the audio tape that redacts the names of

the officers would fully comply with the FOIA and eliminate the concerns of disclosure. 48. Denial of Plaintiffs request for the audio tape, or a transcript thereof, based upon

an exemption that the Attorney General has already ruled is invalid, constitutes a willful and intentional violation of the FOIA. 49. The Sheriffs investigation into Undersheriff Zinkes conduct did not constitute an

adjudication within the meaning of the Act, Section 7(1)(n). 50. No actual hearing, formally prescribed, with notice, rules, evidence was ever held

in connection with the investigation of Undersheriff Zinkes conduct. 51. In addition to the report initially requested, Plaintiffs seek herein both the entire

file on the investigation of Undersheriff Zinkes conduct, including the audio disc referenced above.

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52.

Were Plaintiffs to make a new FOIA request to the Sheriffs Office, requesting

production of the entire file on the investigation of Undersheriff Zinkes conduct, including the audio disc referenced above, the Defendants would deny that request. 53. The AGs May 1, 2013 determination letter clearly contemplates that the full

investigatory file, including the audio disc, constitute public records within the meaning of the FOIA and determines that all said documents are not exempt from production pursuant to the FOIA. 54. An actual controversy exists, in that the Plaintiff desires to review public records

for the purpose of reporting their contents to the public and the Sheriff refuses to provide those documents pursuant to a valid FOIA request and the Attorney Generals order to do so. 55. As a result of the Defendants failure and refusal to produce the requested

documents, Plaintiffs have incurred and will continue to incur costs in connection with this action. 56. The Act provides, at 5 ILCS 140/11(i) in pertinent part:

If a person seeking the right to inspect or receive a copy of a public record prevails in a proceeding under this Section, the court shall award such person reasonable attorneys' fees and costs. . . . 57. The Act provides, at 5 ILCS 140/1.2, in pertinent part:

All records in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt. 58. exemption. Defendants have failed to provide clear and convincing evidence of the claimed

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59. FOIA. 60.

Defendants failure to produce the requested documents is a violation of the

Defendants' present refusal to comply with the AG's order or even respond to

Plaintiff's communications, as well as their most recent FOIA denial for the audio recording on grounds known to have been ruled invalid by the AG., cast doubt on a charitable reading of their earlier exemption claim. 61. In failing and refusing to allow review of the records requested and comply with

the FOIA, Defendants acted in bad faith. 62. The FOIA provides, in pertinent part, at 5 ILCS 140/11(d):

The circuit court shall have the jurisdiction to enjoin the public body from withholding public records and to order the production of any public records improperly withheld from the person seeking access. . . . 63. The Act further provides, at 5 ILCS 140/11(j), that:

If the court determines that a public body willfully and intentionally failed to comply with this Act, or otherwise acted in bad faith, the court shall also impose upon the public body a civil penalty of not less than $2,500 nor more than $5,000 for each occurrence. . . . 64. Plaintiffs are entitled, pursuant to the FOIA, to receive from Defendants, as a civil

penalty, a sum between $2,500 and $5,000 for each of Defendants two breaches of the FOIA. 65. Plaintiffs are entitled, pursuant to the FOIA, to reimbursement of their reasonable

costs and attorneys fees incurred in enforcing their rights. FOR THESE REASONS, Plaintiffs, JOHN PETER GONIGAM and the FIRST ELECTRIC NEWSPAPER LLC, request that this Court enter the following relief against Defendants, the OFFICE OF THE SHERIFF OF McHENRY COUNTY; KEITH NYGREN,

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Sheriff of McHenry County, Illinois; DONALD B. LEIST, as the Equal Employment Officer for the Office of the Sheriff of McHenry County, Illinois; and JAN WEECH, as Freedom of Information Officer for the McHenry County Sheriffs Office: A. Declare that Defendants have violated the Illinois Freedom of Information Act in withholding the public records relating to the Sheriffs Offices internal investigation into whether Undersheriff Andrew Zinke violated any general orders in conveying information to Brian Goode as alleged in Sgt. John Koziols petition for a Special Prosecutor; B. Enjoin the Defendants from withholding the public records relating to the Sheriffs Offices internal investigation into whether Undersheriff Andrew Zinke violated any general orders in conveying information to Brian Goode as alleged in Sgt. John Koziols petition for a Special Prosecutor; C. Order the Defendants to produce the public records relating to the Sheriffs Offices internal investigation into whether Undersheriff Andrew Zinke violated any general orders in conveying information to Brian Goode as alleged in Sgt. John Koziols petition for a Special Prosecutor; D. Order the Defendants to produce either the audio disc that contained an interview with two Deputy Sheriffs or a transcript thereof with the identities of the officers redacted; E. Award plaintiffs their reasonable and necessary attorneys fees incurred in this action;

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F.

Declare that Defendants violation of the Illinois Freedom of Information Act in withholding the public records relating to the Sheriffs Offices internal investigation into whether Undersheriff Andrew Zinke violated any general orders in conveying information to Brian Goode as alleged in Sgt. John Koziols petition for a Special Prosecutor was willful and intentional or otherwise a bad faith violation of the FOIA;

G.

Order the Office of the Sheriff of McHenry County to pay to Plaintiffs a civil penalty of between $2,500 and $5,000, for each of its willful and intentional or otherwise bad faith violations of the FOIA;

H.

Provide such other and further relief as is appropriate. Respectfully submitted, JOHN PETER GONIGAM and the FIRST ELECTRIC NEWSPAPER, LLC, Plaintiffs

By: ______________________________________ Their Attorney Mary E. Gardner (ARDC # 6190951) Mary E. Gardner, P.C. P.O. Box 330 West Dundee, Illinois 60118 Tel: 847/804-7222 Fax: 866/400-0235 megardner@earthlink.net VERIFICATION BY CERTIFICATION Under penalty of perjury as provided by law pursuant to Section 735 of the Code of Civil Procedure, 735 ILCS 5/2-605, the undersigned certifies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and

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belief, and, as to such matters, the undersigned certifies as aforesaid that he verily believes the same to be true. _____________________________________ J. Peter Gonigam Affidavit Regarding Damages Sought I, J. Peter Gonigam, under penalty of perjury as provided by law pursuant to Section 735 of the Code of Civil Procedure, 735 ILCS 5/2-605, certify that the total money damages sought in the Counterclaim above does not exceed $50,000.

_____________________________________ J. Peter Gonigam

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