At the end of the November 21, 2017 City Council meeting, Mayor Lou O’Donnell stated the following.
“In Mrs Gotfried’s comment she totes the fact that we did no release those videos (Tony Ashbaugh, August 2016). We were advised by three different sets of attorneys including MMRMA, our insurance carrier, we were advised by every single one of them not to release those tapes because there was always the question of whether they were illegally obtained. Had we released those tapes for a FOIA request, we could have opened the city to unlimited liability. That is the only reason we did not. We are not trying to hide anything. That is it. It is plain and simple.”
Via a FOIA request, there was only one legal opinion given concerning the release of the August 2016 Tony Ashbaugh public videos and that was by Attorney Sara Bell at the City Council’s November 2016 meeting. There was no documented legal opinion provided by the MMRMA or any other attorneys. If there were conversations with other attorneys, this information was not dispersed to council members through an open meeting nor did the council members go into closed session to discuss legal opinions. Why did Mayor O’Donnell state there were other legal opinions when there is no documentation to back him up? FOIA request for legal opinions.
Via another FOIA request, there was no documented threats of intent of a lawsuit against the city by Tony Ashbaugh’s attorney.
FOIA request for documentation from Tony Ashaugh to sue the city
Attorney Bell’s and Mayor O’Donnell’s opinions not to release the public video due to the city facing unlimited liability appears to be based on a non legal opinion made by Street Supervisor Ashbaugh in a Request for Investigation. FOIA request for Request for Investigation
On page 2, number 1, Ashbaugh stated ‘My lawyer says that electronic eavesdropping on a face to face conversation is illegal under 18 USC Sec 2511(1) and could lead to lawsuits or prosecution.’
This one non legal opinion by a city employee appears to be the entire basis for Mayor O’Donnell’s decision to violate the Freedom of Information Act, to believe the city faced unlimited liability and to spend $33,250 on attorney fees. In his Request for Investigation, Ashbaugh went on to provide the content of the videos to defend his position that the ‘face to face’ conversations were entirely work related not private conversations thus refuting his claim to eavesdropping.
FOIA request for lawsuit expenses Order for city to pay Ray Kirkus’ attorney
O’Donnell continued ‘That is all we did is what our attorneys told us to do and I had mentioned it at several council meetings over the past year plus while this was all in the court system that once a judge decides cause we can’t decide, you know, we all have our opinions and attorneys’ have their opinions but until a judge takes his gavel and says release them, we were not going to release them because we could have subjected, if they were found to be obtained illegally, the city to just unlimited liability and therefore we did not release them and it’s that plain and simple and yes it did cost us $12,500 to pay for the attorney fees for Mr. Kirkus. But its money well spent because it could have been a lot worse because it’s not up to us to decide these and yes there was another lawsuit filed over all this so looking back I have zero regrets whatsoever on how we approached this. Because we are not to determine whether or not something was illegally obtained so therefore we couldn’t release it and it’s that plain and simple.’
The council members should not base their decision to violate the law on a non legal opinion by a city employee nor should they accept a legal opinion by Attorney Bell that is based on a city employee stating ‘my lawyer says.’ O’Donnell said he and the council members are not to determine whether or not something was illegally obtained is correct but the Freedom of Information Act’s exemptions are very specific and do not include threats of lawsuits. Even if there had been documentation of an actual threat of a lawsuit, the council members were obligated to follow the law. If the council continues to violate the FOIA based on the unfounded threats of a city employee, attorneys like Mike Homier will continue to find an easy avenue to $12,500 in legal fees paid by the city.