I was the lawyer who led the team that forced Rahm Emanuel’s administration to release the Laquan McDonald shooting video under the Freedom of Information Act. I have handled hundreds of state and federal FOIA cases against administrations of both political parties, at all levels of government.
I have problems with former Inspector General Joe Ferguson’s recent letter to the U.S. Senate in support of Emanuel’s ambassadorship nomination, in which Ferguson says there was no evidence of a “cover-up” and praises Emanuel’s actions.
First, I disagree with Ferguson that violating the Freedom of Information Act isn’t a cover-up. That’s exactly what it is: A court found Emanuel’s administration had no legal basis to keep the video — and the murder and lies by Chicago police officers it exposed — hidden from the public.
Ferguson excuses that as “longstanding practice,” but in Chicago, bribery, extortion, police misconduct and violent crime are all longstanding practices that we rightly don’t tolerate when “everyone else is doing it” or “it’s always been this way.” Disregard of FOIA is a major contributor to the mistrust of government that Ferguson describes in his letter, and minimizing it emboldens a culture of illegal secrecy.
This was a missed opportunity to advance the cause of transparency.
Not character, just political savvy
I also don’t see why Emanuel should get or accept any credit for things he did after his administration was caught violating FOIA. That’s no measure of his character but only his political savvy.
What’s more, in praising Emanuel’s actions, the letter should have noted, as context for senators evaluating Emanuel’s nomination, that he initially opposed a consent decree, then exploited Donald Trump’s election by backing out of his belated commitment to one — until community groups and the state’s attorney general forced his hand in their own lawsuit.
And in discussing Emanuel’s admission of a code of silence, Ferguson’s letter should have noted that Emanuel’s administration continued to argue, in court cases brought by victims of police misconduct, that it doesn’t exist.
Then there is the video release policy heralded in Ferguson’s letter. The policy doesn’t even comply with Illinois FOIA — which requires release in five to 10 business days, not the 60 to 90 days required under the policy — and hardly deserves any praise. While we wait for release under the policy or for a lawsuit to get before a judge, the Chicago Police Department gives self-exonerating statements and selectively discloses edited snippets of video.
There is also the question of whether a former inspector general should make any kind of statement like Ferguson’s. We could certainly use more transparency in IG investigations, but shouldn’t decisions about what to release be made by the current inspector general using an official process?
Ferguson has done plenty of good work and deserves as much benefit of the doubt as we can rightly give a government official, but an ad hoc release by a former IG in support of the former mayor’s political aspirations is not a good look.
Release all material
Finally, in light of Ferguson’s letter, the IG’s office, the mayor’s office and the city’s law department should now release all records about any investigation into whether Emanuel was engaged in a cover-up.
The letter correctly notes the toxic influence of information-negative spaces, but it creates exactly that — because for all we know, the reason there is no evidence of a cover-up is because the IG never even interviewed Emanuel or went hard after those who might implicate him. Interview transcripts for CPD officers have been released, and so it should be for any interviews of Emanuel or those around him.
As Abner Mikva once wrote, transparency laws are based on the principle that “it is for the public to know and then to judge.” Let’s see the receipts, so the U.S. Senate and the public can judge whether it’s fair to say there was no cover-up. And let’s treat FOIA violations like the affront to democracy that they are.
That they are commonplace only adds to the importance and urgency of calling them out and holding our elected officials accountable for them.
Matt Topic is a lawyer at the law firm of Loevy & Loevy who focuses on government transparency law. Topic has represented the Sun-Times in several FOIA lawsuits.
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