IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT

DUPAGE COUNTY, ILLINOIS

CHANCERY DIVISION

SCOTT A. KIBORT )

Plaintiff )

vs. ) NO. 05 CH 784

)

DEAN WESTROM, Chairman, DuPage )

County Election Commission, )

in his official capacity )

and )

ROBERT SAAR, Executive Director, )

DuPage County Election Commission, )

in his official capacity, )

and )

DUPAGE COUNTY ELECTION )

COMMISSION, a public body, )

Defendants )

AMENDED COMPLAINT FOR DECLARITORY

AND

INJUNCTIVE RELIEF

NOW COMES Plaintiff SCOTT A. KIBORT, by and through his attorneys TERRY PASTIKA and SARAH KLAPER of the CITIZEN ADVOCACY CENTER, who complaining of Defendants pursuant to 5 ILCS 140/1 et seq. states as follows:

PARTIES

1. Plaintiff SCOTT A. KIBORT is a resident of DuPage County, Illinois.

2. DEAN WESTROM is the Chairman of the DUPAGE COUNTY ELECTION COMMISSION of DuPage County, Illinois.

3. ROBERT SAAR is the Executive Director of the DUPAGE COUNTY ELECTION COMMISSION of DuPage County, Illinois.

4. The DUPAGE COUNTY ELECTION COMMISSION (“COMMISSION”) is a public body as defined in 5 ILCS 140/2, and is the public body in possession of the public records at issue in this case.

5. Hereinafter, the term “Defendants” shall refer to all defendants as captioned above.

BACKGROUND FACTS

6. Jurisdiction and venue are proper in this Court pursuant to 5 ILCS 140/11.

7. On or about May 6, 2005, MR. KIBORT submitted a request for information pursuant to 5 ILCS 140/3 to ROBERT SAAR, Executive Director of the DUPAGE COUNTY ELECTION COMMISSION, asking to inspect the following information from the April 5, 2005 Glendale Heights, Illinois Consolidated Election:

1. Absentee Ballot application (for signature verification)

2. Poll Signature cards from all Precincts in above stated election. . . .

3. All Ballots. . . .

4. Ballot box tapes. . . .

5. Records of Election Judge Calls to Election Commission

A. Specifically from BlackHawk (sic) School Precinct 47

B. From Randy Church

C. Concerning voter Dorothy Mulanny.

Attached hereto as Plaintiff’s Exhibit “A” is a true and correct copy of MR. KIBORT’s initial Freedom of Information Act request.

8. MR. SAAR subsequently sent MR. KIBORT a denial of his request for information dated May 12, 2005, stating that MR. KIBORT’s request is “governed by the Illinois Election Code, and is not in compliance with that Code. Therefore, your request to inspect the records and ballots under FOIA is denied.” Attached hereto as Plaintiff’s Exhibit “B” is a true and correct copy of the May 12, 2005 letter.

9. On or about May 19, 2005, MR. KIBORT sent DUPAGE COUNTY ELECTION COMMISSION Chairman DEAN WESTROM an appeal of the May 12, 2005 denial pursuant to 5 ILCS 140/10. Attached hereto as Plaintiff’s Exhibit “C” is a true and correct copy of the May 19, 2005 appeal letter.

10. Defendants sent MR. KIBORT a written response to his appeal dated June 1, 2005, one day past the statutory seven-business-day deadline for reply. Attached hereto as Plaintiff’s Exhibit “D” is a true and correct copy of the June 1, 2005 appeal response.

11. MR. KIBORT has exhausted his administrative remedies, and pursuant to 5 ILCS 140/11, is granted permission to file suit in this Court.

COUNT ONE

Violation of the Illinois Freedom of Information Act, 5 ILCS 140/2 & 3 – Improper Denial of Ballots, Ballot Box Tapes, and Poll Signature Cards

12. Plaintiff SCOTT A. KIBORT reaffirms paragraphs 1 – 11 as though fully restated herein.

13. In his May 6, 2005 Freedom of Information Act request, MR. KIBORT asked to inspect the poll signature cards from all Precincts in the April 5, 2005 Glendale Heights, Illinois Consolidated Election, the ballots, and ballot box tapes related to said election.

14. On or about June 1, 2005, Defendant DEAN WESTROM sent Plaintiff SCOTT A. KIBORT a denial of his Freedom of Information Act appeal to inspect the ballots, ballot box tapes, and poll signature cards from the April 5, 2005 Glendale Heights, Illinois Consolidated Election. Attached hereto as Plaintiff’s Exhibit “D” is a true and correct copy of the June 1, 2005 letter.

15. MR. WESTROM’s denial stated that “all of these [materials] were sealed and delivered after the election to the Commission by the judges of election pursuant to Secs. 17-20 and 17-22 of the Election Code,” and that the materials could be unsealed only in the case of a discovery recount or contest procedure as provided by the Election Code. See Plaintiff’s Exhibit “D.”

16. Said election materials are records in the possession of the DUPAGE COUNTY ELECTION COMMISSION.

17. At all times relevant hereto, there existed in Illinois the Freedom of Information Act, 5 ILCS 140/1 et seq.

18. Said election materials are public records “having been prepared, or have been or being used, received, possessed or under the control of any public body” pursuant to 5 ILCS 140/2(c).

19. Said election materials are not exempted from the Illinois Freedom of Information Act pursuant to 5 ILCS 140/7.

20. Defendants violated 5 ILCS 140/3 by refusing to permit MR. KIBORT to inspect the requested ballots, ballot box tapes, and poll signature cards from the April 5, 2005 Glendale Heights, Illinois Consolidated Election.

21. Defendants’ violation of the Illinois Freedom of Information Act 5 ILCS 140/1 et seq. harmed MR. KIBORT in that he was denied his legal right to inspect public records.

COUNT TWO

Violation of the Illinois Freedom of Information Act, 5 ILCS 140/2 & 3 – Improper Denial of Absentee Ballot Applications

22. Plaintiff SCOTT A. KIBORT reaffirms paragraphs 1 – 21 as though fully restated herein.

23. In his May 6, 2005 Freedom of Information Act request, MR. KIBORT asked to inspect the absentee ballot applications related to the April 5, 2005 Glendale Heights, Illinois Consolidated Election.

24. In the June 1, 2005 appeal response letter, Defendant DEAN WESTROM denied MR. KIBORT’s request to inspect absentee ballot applications from the April 5, 2005 Glendale Heights, Illinois Consolidated Election. Attached hereto as Plaintiff’s Exhibit “D” is a true and correct copy of the June 1, 2005 letter.

25. In the appeal response, MR. WESTROM stated absentee ballot applications “for the April 5, 2005, Consolidated Election are maintained by absentee, precinct and date of review and are not available for public inspection in this format sought.” See Plaintiff’s Exhibit “D.”

26. Said election materials are records in the possession of the DUPAGE COUNTY ELECTION COMMISSION.

27. At all times relevant hereto, there existed in Illinois the Freedom of Information Act, 5 ILCS 140/1 et seq.

28. Said election materials are public records “having been prepared, or have been or being used, received, possessed or under the control of any public body” pursuant to 5 ILCS 140/2(c).

29. Said election materials are not exempted from the Illinois Freedom of Information Act pursuant to 5 ILCS 140/7.

30. Defendants violated 5 ILCS 140/3 by refusing to permit MR. KIBORT to inspect the requested absentee ballot applications from the April 5, 2005 Glendale Heights, Illinois Consolidated Election.

31. Defendants’ violation of the Illinois Freedom of Information Act 5 ILCS 140/1 et seq. harmed MR. KIBORT in that he was denied his legal right to inspect public records.

COUNT THREE

Violation of the Illinois Freedom of Information Act, 5 ILCS 140/2 & 3 – Improper Denial of Election Judge Call Records

32. Plaintiff SCOTT A. KIBORT reaffirms paragraphs 1 – 31 as though fully restated herein.

33. In his May 6, 2005 Freedom of Information Act request, MR. KIBORT asked to inspect records related to the April 5, 2005 Glendale Heights, Illinois Consolidated Election of Election Judge Calls to the ELECTION COMMISSION from Precinct 47, from Judge Randy Church, and concerning voter Dorothy Mulanny.

34. In the June 1, 2005 appeal response letter, Defendant WESTROM denied MR. KIBORT’s Freedom of Information Act request to review the election judge calls records. Attached hereto as Plaintiff’s Exhibit “D” is a true and correct copy of the June 1, 2005 letter.

35. In the appeal response, MR. WESTROM states,

the Commission is not mandated by law to keep a record of election judge telephone inquiries. Moreover, any records of telephone inquiries that the Commission still might have would not be by precinct or particular election judge or voter, as to enable the Commission to easily determine the existence of the information you are requesting and provide it to you. Again, under Section 1-1 of the FOIA, the Commission is not obligated to provide information that is [sic] not required to keep or in a format it is not required to maintain.

36. Said election materials are records in the possession of the DUPAGE COUNTY ELECTION COMMISSION.

37. At all times relevant hereto, there existed in Illinois the Freedom of Information Act, 5 ILCS 140/1 et seq.

38. Said election materials are public records “having been prepared, or have been or being used, received, possessed or under the control of any public body” pursuant to 5 ILCS 140/2(c).

39. Said election materials are not exempted from the Illinois Freedom of Information Act pursuant to 5 ILCS 140/7.

40. Defendants violated 5 ILCS 140/3 by refusing to permit MR. KIBORT to review the Election Judge Call Records related to the April 5, 2005 Glendale Heights, Illinois Consolidated Election.

41. Defendants’ violation of the Illinois Freedom of Information Act 5 ILCS 140/1 et seq. harmed MR. KIBORT in that he was denied his legal right to inspect public documents.

COUNT FOUR

Violation of the Illinois Freedom of Information Act, 5 ILCS 140/7(1)(a) – Failure to Cite Specific Exemptions for Release of Public Records

42. Plaintiff SCOTT A. KIBORT reaffirms paragraphs 1 – 41 as though fully restated herein.

43. In his May 6, 2005 Freedom of Information Act request, MR. KIBORT asked to inspect the poll signature cards, ballots, and ballot box tapes from all Precincts in the April 5, 2005 Glendale Heights, Illinois Consolidated Election.

44. On or about June 1, 2005, Defendant DEAN WESTROM sent Plaintiff SCOTT A. KIBORT a denial of his Freedom of Information Act appeal to inspect the ballots, ballot box tapes, and poll signature cards from the April 5, 2005 Glendale Heights, Illinois Consolidated Election. Attached hereto as Plaintiff’s Exhibit “D” is a true and correct copy of the June 1, 2005 letter.

45. MR. WESTROM’s denial stated that “all of these [materials] were sealed and delivered after the election to the Commission by the judges of election pursuant to Secs. 17-20 and 17-22 of the Election Code,” and that the materials could be unsealed only in the case of a discovery recount or contest procedure as provided by the Election Code. See Plaintiff’s Exhibit “D.”

46. When a request for public records is denied under the Illinois Freedom of Information Act, such a denial “shall specify the exemption claimed to authorize the denial.” 5 ILCS 140/9(b).

47. In his Appeal Response, MR. WESTROM cited the public policy statement in the preamble to the FOIA and Section 7(1)(a) of the Freedom of Information Act, asserting that said section “creates an exemption for information ‘prohibited from disclosure by federal or State law or rules and regulations adopted under federal or State law.’ Thus, … the restrictions on disclosure of voter information in the Election Code control over any general right of access under FOIA.” See Plaintiff’s Exhibit “D.”

48. At all times relevant hereto, there existed in Illinois the Freedom of Information Act, 5 ILCS 140/1 et seq.

49. Section 7(1)(a) of the Freedom of Information Act allows the exemption of “information specifically prohibited from disclosure by federal or State law or rules and regulations adopted under federal or State law.” 5 ILCS 140/7(1)(a) (emphasis added.)

50. In his Appeal Response, MR. WESTROM failed to sufficiently cite sections of the Election Code that specifically prohibit from disclosure the ballots, ballot box tapes, and poll signature cards.

51. Defendants’ violation of the Illinois Freedom of Information Act 5 ILCS 140/1 et seq. harmed MR. KIBORT in that he was denied his legal right to inspect public documents without the required notice as to why he was being denied.

WHEREFORE, Plaintiff SCOTT A. KIBORT respectfully requests that the Court enter an Order:

A. Declaring that Defendants’ denial of MR. KIBORT’s request for the inspection of ballots, ballot box tapes, and poll signature cards from the April 5, 2005 Glendale Heights, Illinois Consolidated Election is a violation of 5 ILCS 140/3;

B. Ordering Defendants to immediately release to MR. KIBORT for inspection the ballots, ballot box tapes, and poll signature cards from the April 5, 2005 Glendale Heights, Illinois Consolidated Election, pursuant to 5 ILCS 140/3;

C. Declaring that Defendants’ denial of MR. KIBORT’s request for the inspection of absentee ballot applications from the April 5, 2005 Glendale Heights, Illinois Consolidated Election is a violation of 5 ILCS 140/3;

D. Ordering Defendants to immediately release to MR. KIBORT for inspection the absentee ballot applications from the April 5, 2005 Glendale Heights, Illinois Consolidated Election, pursuant to 5 ILCS 140/3;

E. Declaring that Defendants’ denial of MR. KIBORT’s request for the inspection of records of election judge calls to the ELECTION COMMISSION from the April 5, 2005 Glendale Heights, Illinois Consolidated Election is a violation of 5 ILCS 140/3;

F. Ordering Defendants to immediately release to MR. KIBORT for inspection the records of election judge telephone calls to the ELECTION COMMISSION from the April 5, 2005 Glendale Heights, Illinois Consolidated Election, pursuant to 5 ILCS 140/3;

G. Declaring that Defendants’ appeal denial was insufficiently specific, and a violation of 5 ILCS 140/11;

H. Preliminarily and permanently enjoining Defendants from improperly denying any request for public information made pursuant to 5 ILCS 140/1 et seq.;

I. Preliminarily and permanently enjoining Defendants from issuing insufficiently specific denials of Freedom of Information Act requests;

J. Awarding Plaintiff reasonable attorney fees and costs; and

K. Granting any such further relief as the Court deems appropriate and just.

Respectfully submitted,

Sarah Klaper

Attorney for Plaintiff