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Geneva library’s purchase contract contained promise of confidentiality

GENEVA – The Geneva Public Library Board’s purchase agreement for the Cetron property contained a confidentiality clause – something an attorney says is not permitted in public bodies’ contracts.

The library board had planned to buy the 2.25-acre property at Richards and Hamilton streets for $2 million as the site for a new library. But after an environmental review, board members decided not to pursue the purchase last month.

A review of the purchase agreement, obtained through the Freedom of Information Act, includes a clause in which the library promised property owner Dearborn Street Holdings of Chicago that it would keep the results of the environmental study confidential.

The contract states that during the due diligence period, the library – at its own cost –  “shall have the opportunity to inspect the property, including environmental, asbestos, radon gas, lead paint, physical defects” and any structural defects of the former factory still onsite, as well as sewage and drainage issues.

“Purchaser shall keep confidential the information resulting from the inspections,” the contract states, in part. “The foregoing shall survive termination of this agreement or the closing, as applicable.”

Dearborn’s attorney did not return a request for comment.

Cetron previously was a factory in which light bulbs were made.

The library district spent more than $21,000 for various environmental studies and a final report from Aires Environmental of Batavia.

Esther Seitz, an attorney who represents Illinois media on open meetings and public records issues, said the library district “should not be entering into secret contracts.”

Seitz said the Freedom of Information Act is specific in its provision that records relating to funds spent by a public body have to be released.

“All records relating to the obligation, receipt, and use of public funds of the state, units of local government, and school districts are public records subject to inspection and copying by the public,” the law states, in part.

Because of that section of the law, Seitz said public bodies cannot promise confidentiality, and case law also supports that.

In Carbondale Convention Center Inc. v. City of Carbondale, a Fifth District Illinois Appellate Court decision in 1993 held that a public body cannot rely on a contract to get around its obligations under FOIA.

In Watkins v. McCarthy, 2012 First District Illinois Appellate Court, the court held that a public body’s promise to keep public information confidential “contradicts the purpose and intent of the Act under which the exemptions are intended as shields rather than swords.”

Library attorney Roger Ritzman said he would not comment on the legality of the confidentiality clause in the library’s contract to buy the Cetron property.

The Kane County Chronicle has a FOIA denial review pending with the Illinois Attorney General Public Access Counselor.

The library released heavily redacted studies and reports from Aires, citing exemptions in the law.

The attorney general’s office is reviewing copies of the unredacted environmental studies to make its determination.

The Chronicle filed the purchase agreement as a supplement to its request for review.

Ritzman would not comment about the denial of records in the earlier FOIA request.

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