IL Employment Security Won’t Release Complaints Against Acting Director

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CHICAGO (CBS) — Multiple department employees filed complaints about Tom Chan, the acting director of the Illinois Department of Employment Security (IDES), last year. But the agency won’t release copies of documents that could detail the nature of those complaints to the public.

Chan served as acting director since March of last year. He was replaced July 9 when IDES appointed a new director.

But just a month before the leadership change, CBS 2 asked the agency for documents about Chan, who at the time of the request oversaw an agency criticized for how it responded to the surge in unemployment claims during the COVID-19 pandemic.

In a letter to CBS 2, IDES Chief General Counsel, Kevin Lovellette, confirmed there were multiple complainants. He said a private law firm was hired to investigate the complaints, and an agency spokesperson said Monday there were no violations found. But they did not explain what the Equal Employment Opportunity (EEO) complaints entailed.

CBS 2 first filed a Freedom of Information Act (FOIA) request with IDES for records related to Chan on May 28. Specifically, CBS 2 requested any and all documents connected to internal investigations into Chan, including complaints filed against him.

Since then, and week after week, the agency repeatedly delayed their release through email and phone calls, and continues to do so at the time of this report. The timeline of their responses raises questions about the agency’s transparency.

After the original FOIA, IDES requested two extensions, citing the need for additional review. This included an acknowledgement the agency possessed records responsive to the request. CBS 2’s agreement to the extensions were contingent that on June 26, the records would be released.

That day, IDES called CBS 2 and said the records would not be released. Instead, the agency requested another five-day extension.

IDES missed its third deadline to release the records on July 6.

Lovellette said in an email they would provide a response on or before July 13. He sent the email to CBS 2 on July 8.

On July 9, Gov. JB Pritzker announced Chan’s replacement.

Adam Marshall, a staff attorney with the Reporter’s Committee for Freedom of the Press, said he believes IDES’ response to CBS 2 is “injurious to the public’s understanding” of the government’s innerworkings.

“I find the whole process in general of how the agency responded to you frustrating and disturbing in terms of the substance,” said Marshall, who primary focuses on public records work and litigation in federal and state courts.

Chan has been with IDES for five years, according to his LinkedIn page. He previously held roles as assistant legal counsel and chief deputy counsel prior to becoming acting director in March of 2019. He will return to his position of chief deputy counsel once the new director, Kristin Richards, officially assumes the role in August.

In Chan’s current position he is paid a salary of $168,000, state payroll records show.

Prior to joining IDES, Chan served as legal counsel on the Illinois State Senate for five years, according to a biography written on the website of his alma mater,  Northern Illinois University.

IDES’ delay in releasing public records appears to be yet another example of the agency’s pattern of evading transparency, CBS 2’s reporting found.

Chan has been noticeably absent from Pritzker’s regular briefings despite, week after week, state numbers showing unemployment skyrocketed by the thousands at the height of the COVID-19 pandemic.

CBS 2’s reporting as part of its “Working for Chicago” series continues to uncover failures in IDES’ overwhelmed claims system. The series exposed how, case after case, people struggled to successfully file for unemployment or get their benefits for months. Some are still waiting even today. More recently, unemployed works complained they’ve been waiting days for callbacks from IDES’ new “callback-only model.”

In May, employees who interviewed under the condition of anonymity revealed for the first time the factors contributing to the backlog. They shared what they believe to be a workplace plagued with problems. They also called for the agency to hire more staff to handle the surge in claims (an agency spokesperson said IDES hired hundreds of new calltakers to help with the workload).

The sources also alleged the agency was so overwhelmed employees were encouraged to “push” applications through — even those with obvious errors, contributing to a delay in benefits to claimants. The allegations contradicted information IDES released to the public, including statements which said there is no backlog in issuing benefits.

CBS 2 requested multiple interviews with IDES since the start of the pandemic. CBS 2 only received statements from the agency’s spokesperson, Rebecca Cisco. In April, CBS 2 emailed Chan with questions about the challenges claimants are facing and did not receive a response. A reporter called Chan directly that same day and he hung up.

And on July 7, just two days before Chan was replaced, the Illinois Attorney General released its scathing findings of an audit of IDES spanning June 30, 2019 to March 3.

The audit uncovered security lapses at one if its locations, and with equipment and other confidential records.

For instance, the Attorney General examined IDES’ cybersecurity program, including its computer systems containing a large amount of confidential personal information of claimants. The audit found the department failed to classify its data “to identify and ensure adequate protection of information” most susceptible to attack.

In the case of the agency’s delay in releasing public records about Chan in a timely manner, as outlined in state law, CBS 2 filed an appeal with the Illinois Attorney General Office Public Access Counselor (PAC) to review potential FOIA violations.

On July 13, Lovellette sent a letter to CBS 2 and the attorney general’s office, stating the agency would continue to withhold the records. He claimed releasing the documents could identify the complainants – even if their personal information was redacted.

“We struggled with whether withholding the files altogether versus providing them in redacted form was more appropriate,” Lovellette wrote. “As explained below, we ultimately determined that the complainants would be identified even with extensive redactions given the relatively small number of employees at the Department who would have interacted with Mr. Chan, and because the nature of the complaints would identify those individuals.”

Lovellette also asked PAC review the documents and offer “guidance” or “instruction” on how to respond to CBS 2’s records request. His letter came after the agency spent more than a month reviewing the records.

The letter cites Copley Press, Inc. v. City of Springfield, a case from 1995 where the court upheld state police’s denial in response to a Copley Press request for an investigatory file.

But Marshall questioned whether it was a fair comparison.

“Certainly there are some cases that talk about the possibility of discovering the identity of the people in certain contexts in the law enforcement context, and those may differ dramatically both in terms of the facts and the rationale behind some of these decisions from cases that are just about management within an agency,” Marshall said. “It’s not necessarily an apples to apples comparison.”

There is some precedent in Illinois where complaints made about public officials were released to journalists. For instance, in 2018  PAC issued a binding opinion in response to a request for review from the South Side Weekly, which sought two complaints made against a police officer and was denied.

PAC’s opinion was the records in question were not exempt from disclosure.

“Both of the complaints concern the officer’s actions while he was performing his public duties as a District police officer,” the opinion said. “As a result, the records unequivocally bear on the officer’s public duties.”

The opinion also stated, in part: “…disclosure of these reports would not constitute an unwarranted invasion of the police officer’s personal privacy.”

Similarly, CBS 2’s FOIA request to IDES asks for documents concerning alleged behavior and actions of Chan, a public official, while in his public capacity. In its appeal to PAC, CBS 2 argued there is public interest in any records connected to IDES and Chan, who leads an agency with a critical role in government’s response to the pandemic.

Marshall said Illinois FOIA law, like many other public records laws across the country, balance public employee privacy interest and the public’s interest in knowing how the government is functioning.

“And here, the records being sought [by CBS 2], records about internal investigations or complaints about the interim director, goes to the heart of what the Illinois FOIA is there for,” Marshall said, adding the records could reveal to the public the reasons behind the complaints and the government’s response to them.

“So that overriding public interest outweighs any privacy interest that may exist here,” Marshall said. “So I think the agency’s decision to withhold the records is misguided.”

CBS 2 requested interviews with IDES through Cisco, directly to Lovellette and through its FOIA officer, about the withholding records of records concerning a state employee from the public. Neither responded until CBS followed up with Cisco and Chan again via email Monday to inform them the story would be published.

Cisco then sent a statement shortly before this report published, saying the documents in question are EEO complaints stemming from April to June of 2019 — after Chan was named acting director. The complaints were investigated and “it was determined that there was no violation of the law or the ethical rules,” the statement said.

The agency also said it would “fully comply” with the PAC’s decision in response to CBS 2’s appeal. IDES’ full statement can be read below:

“The underlying EEO complaints, from April to June of 2019, were investigated and it was determined that there was no violation of the law or the ethical rules. We are fully committed to transparency in this and all matters, but we have a responsibility to protect the confidentiality of those who filed the complaints and cannot release documents that would reveal their identity or their private information. We have asked the Public Access Counselor for guidance in this matter and will fully comply with their decision.”

Chan will soon return to his prior role as deputy chief counsel of IDES’ law office – the same department currently reviewing CBS 2’s FOIA request.

26-Delivered

via CBS Local

July 20, 2020 at 05:12PM

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