Public records that aren’t

Russel.Nelson.headshotIn December 2013 Bill Dorsch submitted the latest in a long series of requests under the Freedom of Information Act that he’s filed for information about the Gacy investigation. He asked the Cook County state’s attorney’s office for the missing persons report on Russell Nelson, and any “investigative reports, letters, or correspondence between Robert Young and any investigators of the Chicago Police Department or the Cook County Sheriff’s Department during their investigation into the disappearance and death of Russell Nelson.”

FOIA is the federal law that gives citizens access to public records unless the records are shown to be exempt for some specific reason. One reason for a denial, for an example, might be that they’re part of an ongoing prosecution.

In January 2014 Dorsch received a response from the state’s attorney’s FOIA officer, Paul Castiglione, who said no records would be forthcoming and inviting Dorsch to submit his request to the police and the sheriff’s office instead. He also informed Dorsch, as he had to do by law, that he had the right to appeal the decision. The reason Castiglione said, was that according to an appellate judgment delivered in Kendall County in 2013, “The SAO is not a ‘public body’ subject to FOIA.”

In other words, the Cook County state’s attorney’s office, which is funded entirely by taxpayers to conduct legal business on behalf of the citizens of Cook County, asserted that it didn’t have to show the citizens of Cook County any records of that business.

Denials and appeals serve a double whammy to the public good: they cause delays and create financial burdens for the requesters, and they drive up the expense to tax payers in the form of fees to the attorneys fighting requests, suits, and appeals.

Try, Try Again

Dorsch didn’t need the advice. He had already submitted requests to the police and the sheriff. The police responded to Dorsch’s letter by saying they hadn’t handled the Gacy investigation and therefore had no documents. That seemed unlikely, since most of Gacy’s victims went missing in Chicago. But Dorsch would have to appeal to get a hold of them.

The sheriff’s office said Dorsch’s request would demand too much time and effort  to fulfill. And besides which, they said, their current investigation, prompted by pressure exerted on Sheriff Tom Dart by Dorsch’s discoveries, was focusing on unidentified victims–they claimed they didn’t have anything on known victims anyway.

Dorsch finds this last claim particularly absurd: the Cook County sheriff’s office has had all the records relating to Gacy since the day it kicked the Des Plaines police off the case. Gacy was arrested on December 21, 1978, and on December 22 the CCSO took over. The CCSO is and has always been the repository of all records in the case.

On May 22, 2014, the Illinois Supreme Court overturned the appellate court’s ruling in Kendall County, so state’s attorneys are once again subject to FOIA requests. But not everyone has the resources to file requests and lawsuits and take their case all the way to the state supreme court, if not farther if need be, so unfortunately if a public official doesn’t want you to see something chances are still pretty good you won’t.

In the meantime, Tracy Ullman filed a different FOIA request with the Cook County state’s attorney. In April she asked for the missing persons report and other investigation records pertaining to Russell Nelson and Robert Young.

First the SAO suggested that she confer with the sheriff’s office instead. When she protested the SAO assured her that it would look for the records but said it wasn’t clear yet if the office would be able to produce them.

Who Knows What?

Even when public officials appear to be complying with a FOIA request, they can manipulate the results. They can hold back certain documents and redact details from the ones they do turn over.

“They know more than you do, and they know you don’t know what you don’t know,” says Dorsch. “So they can make sure you still don’t know it.”

On the other hand, it helps if they don’t know what you know.

Dorsch has taken another legal step available to him: he requested that Attorney General Lisa Madigan’s office review his FOIA requests and the unsatisfactory responses from the county officials.

Photo courtesy The Pine Knot, Cloquet, Minnesota

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