Saturday, March 15, 2008

'FOIA' Experts Needed

A reader wrote in with the following question regarding "FOIA" (Freedom of Information Act) and the contract between Target and Holsten:

"On March 2, 2008 I again requested through FOIA “Target’s letter of intent or any other communication indicating Target’s interest/commitment to lease or purchase space at Wilson Yard.” I have also requested “All contracts for the purchase or lease of property by Target (or it’s agents)."
I have talked to Tony Binns at the Department of Planning about this request and basically he’s saying that he cannot send it because they do not have it. They do not have it because this is an agreement between Holsten and Target. I read through the Illinois FOIA law and it only covers Public Documents. Any agreements or contracts between Holsten and Target would not be a public document. If anyone has advice or suggestions please let me know but at this point I believe we cannot get these documents through FOIA ."


  1. I'd request the RFQs, RFPs and contracts for Holtsen and the City of Chicago, Holsten and the CTA, and Holtsen and State of Illinois.

  2. Thanks Suzanne, I already have all the documents that you suggest. What I'm looking for is some confirmation of the claims by Holsten and Shiller that Target is in fact coming to Wilson Yard and am seeking to find out what the parameters are.

  3. FOIA tip #1

    1st call & ask w/o FOIA. try 311 even. IL's FOIA law does NOT require that every request from a citizen for documents be a FOIA request, although many City depts think so

    FOIA tip #2

    do everything in writing. even if you find a friendly voice on the phone who tells you they will send you something, you don't need to write, follow up in writing, "as we discussed..."

    POIA tip # 3

    FOIA request to our home town often take two or more go-arounds.

    starting with your 2nd and all subsequent correspondence on a request, cc these fine folks:

    Terry Mutchler
    Attorney General Public Access Counselor
    500 S. Second Street
    Springfield, IL 62705

    they will not do your FOIA for you but cc'ing them lets the City know you know the law

    they may not even help at all, and the threat of the AG coming after them may not mean much to them, but I'll tell you what does - the threat of the AG getting so many complaints about a dept. they come in and schedule all hands mandatory attendance FOIA training

    and Lisa Madigan is ramping up her political aspirations, so it can't hurt

  4. Illinois Attorney General:
    Ensuring Open and Honest Government
    A Complete Guide to the Illinois Freedom of Information Act (pdf)

    An excellent report written by attorney Donald M. Craven:
    Open Government Guide: Illinois

  5. you probably don't want to hear this right now but in my experience compared to other City depts. Binns at DPD is one of the more reasonable FOIA officers

  6. I have also heard but cannot confirm that Mara Georges, Daley Lt., our corporate counsel, and head of our home town's law dept holds a weekly meeting to review all but the most mundane FOIA requests for potential political impact

  7. in search of the fabled letter of intent from Target

    here's how I would start

    was Target specifically mentioned in testimony at the public hearing before the CDC that approved WY?

    I think it was

    if it was just an alderman talking, well, they can say anything

    but if Holsten reps or DPD staff mentioned Target they may or may not have submitted supporting documentation

    DPD provides administrative support for the CDC, including keeping their files. Bring the date, you can stop by DPD in City Hall and politely request to view the official records of the hearing. You will be given a file and shown a desk. It should include a transcript and any documents submitted into the record. Look for mention of Target, who said it, and then look for any supporting docs wrt Target

    you can ask to copy any or all of it for a small fee

    if you don't find anything, ask, is this everything? it might be prudent to later re-request the same file in writing to document that there is no letter

  8. Good tips - Hugh.
    I'm thinking I may not be asking for the right thing (document).
    The complete guide to the Illinois Freedom of Information Act states...
    “Subsection 2(c) of the Act defines the term "public records" to include all records, reports, forms, writings, letters, memoranda, books, papers, maps, photographs, microfilms, cards, tapes, recordings, electronic data processing records, recorded information and all other documentary information having been prepared, or having been or being used, received, possessed or under the control of any public body.”

    Hugh I’m assuming that the Department of Planning may not have the Target/Holsten contract (if there is such a thing) and it may not be considered a PUBLIC RECORD but the DOP must have SOME documentation relating to this transaction that I can FOIA. What kinds of records would the DOP have relating to this?

    I agree Tony Binns has been very easy to work with.

  9. Thanks Hugh,
    I was writing my 12:20 comment while you were posting your 12:18 comment. My appologies for what appears to be me asking the same question over and over again.

  10. you sound very frustrated

    recognize most of your problems are because Target is not a direct party to the WY agreements with the City

    compare & contrast WY with the TIF project to bring the Target Store to Peterson Ave, there Target was the City's partner

  11. What kinds of records would the DOP have relating to this?

    IL FOIA law allows you to make this kind of a query

    the def of public doc is very broad, so broad it is difficult to understand how DPD might have docs that they do not consider public

    if at any point Holsten submitted or showed a letter of intent (or contract) with Target to the City, it was "used" by the City and is fair game

    if they deny your request they have to say WHY, in writing

    Lisa has a good discussion of this in her manual

  12. It's hard to imagine that an anchor lease like Target--large enough to make or break the project and its bonding terms--would NOT show up in the contacting trail, no? Hugh, any insight?

  13. Right. Target is named in the originating contract as an anchor site end user. If there is a change in the status of the leaseholders, the contract specifies for notice, the reasoning being that as an anchor Target is large enough to impact the financing if not the viability of the project. DPD may not have the documents you seek but it's not because the agreement between Target and Holsten is private. Try another approach: Ask for commitment documents for Aldi and the theaters before they pulled out. If DPD (or procurement, or contracting) has any of those and NOT Target's, you may have quite a stinky fish on your hands.

  14. "It's hard to imagine that an anchor lease like Target--large enough to make or break the project and its bonding terms--would NOT show up in the contacting trail"

    very hard to imagine

    recall the original plan Phase 1 was to move Aldis, and build the big box store & movie theaters and SELL them to fund Phase 2 (the "family" tower) and Phase 3 (the "senoir" tower)

    Target was not just a tenant, they were more like pre-construction purchasers

    Target is called out by name in the redevelopment agreement approved by DPD, Plan Commission, Finance Committee, City Council, etc.

    so did they all accept the "Target is Coming! Target is Coming!" story on word of mouth?

    if so, I guess we should know that

  15. although FOIA will not help us requisition docs from Holsten, DPD can

    the redevelopment agreement gives our City unlimited access to Holsten's papers, well beyond anything FOIA-ish

    see section 14 Maintaining Records/Right to Inspect

    14-01 Books and Records

    if the City tries to claim, "sorry, we don't have any documents on Target", we need to (politically, at this point this is no longer a FOIA issue) ask, well, why the hell NOT?

    you are OUR govt

    you represent US in this deal

    you can get it for the asking

    we want to see it

    turn the tables on them

    don't let them use privatization to avoid accountability for a massive public works project

  16. "don't let them use privatization to avoid accountability for a massive public works project"

    This is a very good point, Hugh. Citizens' rights haven't caught up with the new financial ways that state, local and fed governments are operating these days. I appreciate your asking questions. The more we know, the greater the possibility that we can get some friends outside of the local area to help us address our concerns. All friends of democracy and good government should be interested in how this is unfolding.

  17. Hugh is right. Also, if Target was never really locked in, or is no longer an anchor, that would qualify as a change of use and the developer is obligated to notify the DP of such. My hunch is the delay is due having to restructure the project after the theaters pulled out, particularly the use and financing agreements which were likely upended with that one but significant change.

  18. OMG! Shiller was right...they were inextricably linked!

  19. " ... if Target was never really locked in, or is no longer an anchor, that would qualify as a change of use and the developer is obligated to notify the DP ... "

    the redevelopment agreement requires DPD to approve in writing a change of anchor tenant

    see 8.06(b)

  20. let me throw this out

    maybe try to track down the letter of intent/contract with Target by thinking of the question as, ok, we see Target is named as the anchor in the redevelopment agreement, how did it get there?

    correspondence in writing & e-mail is fair game for FOIA

    consider FOIA'ing DPD for all correspondence between DPD and Peter Holsten or his companies:

    Wilson Yard Development I LLC

    Wilson Yard Partners LP

    Wilson Yard Development Corporation

    Wilson Yard Senior Housing LP

    Wilson Yard Senior Development Corporation

    that should put the fear of god in 'em

    look for the earliest reference to Target, was it from the City or Holsten side? does the correspondence reference any supporting documents?

  21. "...they were inextricably linked!"

    I'm hoping that was snark; but, if not, the fact that she laid out a crap plan to begin with doesn't give her cover for that bad plan.

  22. Yes, the previous poster was enjoying some snark. There is interdependent (not inextricable) financing and it is more critical when there are fewer public dollars to devote. But now the number of TIF dollars available to finance the project probably exceeds what’s needed to complete the project. That’s a pretty flush position and it was bought with time, a wildly overheated housing market, and two triennial reassessments. Through this lens, it’s possible the delays have actually worked to keep Target in play, not drive them off.

  23. Has someone taken the lead on tracking down all these FOIA documents on Target? Piecing the information together? And reaching what conclusions?

    Hugh makes several very key points.
    Target is supposed to buy their building. Not lease. Is that happening?

    Remember, "affordable" housing is the only bricks and mortar that can use TIF funds. The dollar amount is limited to 35% of the entire estimated TIF fund. Why do you think they keep raising the ante on the TIF fund? Money is very tight, this project is a massive public works mess, and Holsten needs some new Cole Hahn loafers.

  24. A private entity's info generally becomes subject to State Foia in four possible ways per the ABA's Access to Govt in the Computer Age p 114, Martha Harrell Chumbler, Editor:

    1. The private agency can become a deemed state agency for FOIA purposes;
    2. the private entity can subject its info to State FOIA by providing it to another private entity, which happens to be a deemed state agency for State FOIA;

    3. the private entity supplies the info to a govt agency as part of a regulatory or procurement regime;
    4. A private entity elects not to provide its info to a govt agency, yet has it's info subject to FOIA disclosure by affording the govt agency some interest in, or right of access to, information prepared under a contract with the agency.

    Per the Illinois State's attorney's office, the leading Illinois private contractor cases are the Rockford and Top Hat cases, which are open meetings act cases that define "what is a public entity?" (Note that the FOIA laws look to the Open Meetings laws and cases for their interpretations and definitions.)

    In the jurisdictions where these Illinois cases were heard,these 2 cases make it comparatively difficult for private entities to reach the "deemed govt agency" level (that is, to make Peter Holsten's Wilson Yard corp a FOIA reporting govt. agency) The Rockford case court declares that general supervision by the governmental body (like our Dept of Planning) "does not transform the supervised into a subsidiary of the government." 64 Ill. App. 3d at 95-97, N.E.2d at 1193-94, 21 Ill. Dec. at 17-18.

    The Illinois Appellate Court, First Judicial District, cited Rockford with approval in Hopf v. Topcorp Inc., 170 Ill. App. 3d 85, 527 N.E.2d 1, 122 Ill. Dec. 629 (1988). A divided court found that a "mixed" private-public entity was not subject to the Act.

    That might be Tony Binn's uncited reason for denying the FOIA request, however, that just knocks out the one direct way that a private entity's info can become subject to FOIA. Let's explore the others.

    As pointed out by the Reporters Committee for Freedom of the Press, "It should be noted and emphasized that, in certain contexts, records relating to non-governmental entities may be available from the governmental entities that fund them. For example, the Illinois Appellate Court has ruled that private landlords receiving federal funds for housing through a local housing authority have no protectable right of privacy that prevents disclosing a list of those landlords who receive such funds, the amount of payments received and the addresses of properties subsidized under the program. Mid-America Television Co. v. Peoria Hous. Auth., 93 Ill. App.3d 314, 417 N.E.2d 210, 48 Ill. Dec. 808 (3d Dist. 1981).

    "And in Family Life League v. Dep't of Public Aid, 112 Ill. 2d 449, 493 N.E.2d 1054, 98 Ill. Dec. 33 (1986), the Illinois Supreme Court ruled that the Illinois Department of Public Aid was required to disclose the names of doctors who provide abortion services, the number of abortions performed and the amounts paid for the services. In making its ruling, the court noted that receipt of state funds by physicians creates a public interest in the physicians' activities regarding the use of the funds that outweighs the physicians' limited privacy interest in the information. See Family Life League, 112 Ill. 2d at 457, 493 N.E.2d at 1058, 98 Ill. Dec. at 37."

    " The same principles may be applicable in other factual situations."

    So look to the Master Development Contract between the city and Peter Holsten to see what documents the city receives and is entitled to see or approve related to Hosten's involvement with Target. You will undoubtedly find that Holsten does not have unfettered rights to build or contract for whatever he wants. He is either acting as an agent on behalf of the city or must get city approval to bring a business into the TIF.

    Remember that Target is entering the TIF district to get TIF benefits (exemption from Cook County real estate taxes and TIF funding) from the city's TIF, not from Peter Holsten. So Target would have to have an agreement to get these benefits from the city in place before it inked a contract because it goes to the economics of the deal.

  25. thanks for the post

    I agree we have little hope of Holsten being declared public (even though the WY project is essentially a public works project when you consider the ratio of public to private capital)

    I agree our best hope of prying documentation from this project is via the access Holsten ceded to US the City of Chicago when he signed the redevelopment agreement.

  26. "That might be Tony Binn's uncited reason for denying the FOIA request ... "

    again it is important to recognize that we are entitled to a WRITTEN and VERY SPECIFIC reason for a denial

  27. from the redevelopment agreement between Holsten and US the City of Chicago:

    Section 14.

    Maintaining Records/Right To Inspect.

    14.01 Books And Records.

    Each Developer shall keep and maintain separate, complete, accurate and detailed books and records necessary to reflect and fully disclose the total actual cost of the Project and the disposition of all funds from whatever source allocated thereto, and to monitor the Project. All such books, records and other documents, including but not limited to, such Developer's loan statements, General Contractors' and contractors' sworn statements, general contracts, subcontracts, purchase orders, waivers of lien, paid receipts and invoices, shall be available at the Developer's
    offices for inspection, copying, audit and examination by an authorized representative of the City, at the Developer's expense. Each Developer shall incorporate this right to inspect, copy, audit and examine all books and records into ALL CONTRACTS ENTERED INTO BY THE DEVELOPER with respect to the project.

  28. Yes, citizens are entitled to a written and timely reason for rejection. And, yes, Tony Binns, has a history of failing to provide both of these with his failures to respond to FOIA requests.

    But what does that get you? Under Illinois law citizens have the right to appeal to the Dept head as soon as the 10 working day response period ends, with an improper response or with no response.

    If the Dept Head fails to respond properly and timely, a citizen may sue and the court may award attorney fees and cost reimbursement.

    In an attempt to avoid the fee reimbursement, the offending agency will then attempt to hand over the docs on the way to or in court. That last ditch effort will fail as Illinois court cases have held that that is a slimy agency trick, which undermines FOIA and cannot not be used to thwart the law or the attorney fee/cost reimbursement. However, there are some threshholds one has to reach to get that fee and cost reimbursement.

    Here are links to Illinois Municipal League legal website articles that can explain. Search there for more IML articles related to FOIA, Open Meetings Act (collectively called the Sunshine Laws).

    Attny Fee:
    Attny Gen:


  29. Thank you all,
    I am the reader who wrote the original post asking for help. I have communicated with Tony Binns and am waiting for a response. All of your suggestions are great and I’m sure they will be helpful as this unfolds. I will continue to update you under this original post and let you know the response(s) I get so please return to this post to check for updates.

  30. Here is the reply I received from Tony Binns (FOIA officer DOP) regarding my request for a letter of intent or contract from Target.

    “At present, the Department of Planning and Development does not have a final letter of intent from Target to the developer, nor a copy of the contract with the developer for the purchase or lease of the property by Target in response to items (3) and (4). The draft copy of the letter of intent is exempt by FOIA, pursuant to 5 ILCS 140/7 (F), preliminary drafts, notes, recommendations and other records in which opinions are expressed or policies or actions are formulated. However, once we obtain an executed copy we can forward it to you or your organization.”

    So the questions are:
    1. Do they not have a final letter of intent (not a draft) because it doesn’t exist or because they haven’t gotten it from Holsten?
    2. Is this significant information that (from what I’m reading) they only have a draft?

  31. "Is this significant information that ... they only have a draft?"

    YES! Absolutely!

    Recall that Target was written into the WY plan and its financials. Phase I of the WY plan, moving the Aldi's and the construction of the big box store, was funded in part by $10.8M proceeds from the SALE of the big box portion.

    The project had multiple sources of funding, including public and private borrowing, and if one of the sources of funding was misrepresented as more in the bag than it in fact was, but it helped secure the others, well, that's gross incompetence at best and fraud at worst.

    Recall that paintings depicting the big old Target logo on the side of the building where exhibited by DPD to the public, the CDC, and the City Council.

    Are we to understand Target got written into the redevelopment agreement, and was presented by DPD to the CDC and the City Council, and the project financing was based a DRAFT letter?

    Note that Phase I is not yet complete. From what we know the project has been delayed for years as the developer is loosing sources of funding faster than he can find them. If the City entered into this without locking up the revenue from Target, a strong case could be made that incompetence of DPD has resulted in years of lost real estate and sales tax property revenue.

    So, yeah, it's significant.

  32. "Do they not have a final letter of intent ... because it doesn’t exist or because they haven’t gotten it from Holsten?"

    Politically, does it really matter? Either way the City is caught w/ their pants down. How did Target get written into the redevelopment agreement? Based on an unsigned DRAFT letter?

    Think of condo projects, which these days often do not get started without a certain umber of units sold at pre-construction prices.

    Were we the taxpaying public mislead, and did our own home town's govt co-operate in the deception?

  33. THANK YOU for working on this FOIA and posting the reason for denial.

  34. Since it was originally approved, the project has fallen years behind schedule as developer has been back to the City TWICE hat in hand looking for new funding. With this FOIA denial we have now learned that back at project approval time, our City co-operated in making the earlier sources of funding seem more reliable than they were.