Judge: Officers’ suit for release of records to felon can continue
The city of Aurora and its former records manager could be held legally responsible for endangering officers by mailing their personnel files to a prisoner
The Beacon-News, Aurora, Ill.
AURORA, Ill. — The city of Aurora and its former records manager could be held legally responsible for endangering police officers by mailing their personnel files to an Illinois prisoner, according to a federal judge.
In July, seven current and former officers and their families sued the city and former records manager Jo Ann Osberg in U.S. District Court, demanding a jury trial and seeking damages. The city sent largely unredacted personnel files for at least six of the officers in October 2015 to an inmate at Menard Correctional Center and released similar files for the seventh officer to another felon, according to court documents.
Jesse Alvarez, an inmate at Menard on an attempted murder conviction, asked in a handwritten records request for information on officers who worked his case, saying he was pursuing post-conviction relief and doing an investigation on all officers, detectives, prosecutors and judges involved. Alvarez was sentenced in 2014 to 88 years in prison for shooting and trying to kill a rival street gang member.
In an opinion and order denying the city and Osberg's motion to dismiss the lawsuit, U.S. District Judge Sara L. Ellis stated the officers had met their burden for pleading their case under theories including state-created danger.
"Defendants perhaps confuse 'danger' with whether the private actor needs to actually commit harm to the plaintiffs for a state-created danger theory to apply," Ellis wrote. "If the government throws an individual into a snake pit, and the individual is not harmed by the snakes, but hurts himself escaping the pit, the government has still placed the individual in danger that has caused the individual harm."
During a status hearing Thursday afternoon at Everett McKinley Dirksen U.S. Courthouse in Chicago, Ellis told the parties to figure out who they needed to depose, ordered them to finish fact discovery by June 1, set another status hearing for May 29, and referred them to a magistrate judge for a settlement conference.
In court Thursday, lawyers for each side acknowledged they had talked about settling, but did not seem confident that was possible.
In September, the city and Osberg filed motions to dismiss all five counts of the complaint, including two counts alleging federal constitutional privacy violations — one focusing on the city and the other asserting Osberg's individual liability — and three counts alleging violations of Illinois law.
While the city has argued releasing officer files only posed a potential danger, the judge disagreed, stating the danger is "actual." It's plausible the city provided a felon information that could be used to harm the officers, Ellis wrote.
Ellis cited a case in which the city of Columbus, Ohio, gave police personnel files to the defense lawyers representing a violent gang member incarcerated because of the officers' work, who got the files from his lawyers. In that case, a judge ruled the city "substantially increased the officers' and their families' vulnerability to private acts of vengeance," Ellis cited, stating the facts are virtually the same as in the Aurora case.
Osberg is not entitled to qualified immunity, as lawyers for her and the city have argued, because if the allegations against her are true, they indicate she violated a clearly established constitutional right, the order states.
The city has admitted in court documents that in late 2016, officers were told their information, including home addresses, family members and Social Security and phone numbers, had been given to at least one incarcerated felon associated with the upper levels of a street gang.
The personnel files of six of the officers were released in response to the same Freedom of Information Act request, according to court documents: John Munn, Darrell Moore, Marco Gomez, Armando Montemayor, Arturo Montemayor and Leonard Casamassimo.
Court documents state a March 2017 audit of the city's FOIA response procedures revealed other unredacted personnel files disclosed to at least one other felon, including those of the seventh officer involved in the lawsuit, Michael Nilles. He is retired, according to the city.
In response to a Beacon-News FOIA request for that audit and any and all records related to similar audits completed in 2017, the city provided a Jan. 12, 2017, email from Police Chief Kristen Ziman to all sworn personnel stating a five-year audit of Osberg's FOIA responses had been completed and summarizing the results. Ziman wrote that in 2014, Osberg had released a performance complaint that included the home address of retired officers whose names are redacted and that at least one Social Security number was not redacted from a training request. Referencing information involving six officers they already knew had been sent out, Ziman stated no other employee information was released.
"Once again, I am truly sorry that this happened," Ziman wrote in the email. "I don't pretend to know the challenges that you and your families have faced knowing that personal information was released."
On behalf of the city, attorney Mallory Milluzzi in an email said they don't have any records relating to any March 2017 audit and that no formal audit was conducted. She said if the city had changed or reviewed its FOIA policy or procedure, those communications and drafts would be exempt pursuant to two sections of the act.
©2018 The Beacon-News (Aurora, Ill.)