Keeping public contracts secret
COURTS | Bruce Rushton
A Sangamon County judge has rejected a plea from a Massachusetts company that claims that requests for the company’s contracts with more than a dozen Illinois school districts are harming business and damaging the company’s reputation.
Lawyers for Ameresco had argued that requests under the state Freedom of Information Act for contracts should be barred, even though the contracts had been discussed and approved by school boards during public meetings. Ameresco has contracts with scores of public agencies across the United States that have paid the company to perform work aimed at reducing energy costs.
The plea from Ameresco that was rejected by Sangamon County Circuit Court Judge Leslie Graves on Tuesday came as part of a lawsuit filed against the company by Chatham residents. The plaintiffs say that the company hoodwinked the Ball-Chatham School District by telling the school board that reduced expenditures for energy would cover the entire cost of a $2.2 million contract for work that included the installation of energy-efficient lights in schools.
The company told the school board that savings were guaranteed, the plaintiffs allege, and if savings didn’t cover the cost of work, the company would reimburse the district for the difference. In fact, attachments to the contract stipulated that savings had been achieved when the deal was signed, before any work had been accomplished. The plaintiffs allege that the deal violated a state law that allows school districts to sign no-bid contracts with companies that promise to deliver energy savings that equal, at a minimum, the cost of the work performed. The plaintiffs say that the law requires that savings be measured to ensure that reduced expenditures for energy will cover the cost of work. The plaintiffs also allege that Ameresco’s contract with the Ball-Chatham School District contained no mechanism to measure savings.
After suing Ameresco over the Ball- Chatham deal, lawyers for the plaintiff earlier this month filed requests under the state Freedom of Information Act with more than a dozen school districts in Illinois, asking for copies of contracts between the districts and Ameresco as well as billing invoices showing how much districts have paid the company for work aimed at reducing energy costs. Such records, Ameresco says in court documents, are “confidential, proprietary and privileged information.”
In the event that the judge would not quash FOIA requests, the company asked Graves to bar the plaintiffs from using contracts and billing records obtained from FOIA requests for any purpose other than the lawsuit over the Ball-Chatham contract.
The company says that it has already suffered financial losses due to the FOIA requests and that damage to its reputation from the requests is “incalculable.”
“In this instance, Ameresco has already lost sales and will continue to lose sales and customers if…counsel is not enjoined from issuing additional (FOIA) requests,” Ameresco lawyers wrote in a motion asking that the plaintiffs be barred from asking for billing records and copies of contracts between the company and school districts.
In affidavits filed with the court, three Ameresco executives say that superintendents from several school districts have contacted the company about FOIA requests received from the plaintiffs.
“The FOIA requests sent to our customers in the state of Illinois is (sic) creating unwanted and unnecessary attention and making it more difficult for us to competitively bid and seek new business opportunities among school boards and school districts,” wrote Erik Froelich, an Ameresco vice president, in one of the affidavits.
If a school district believes that a firm such as Ameresco poses either a political or legal risk, the district would establish contracts via traditional competitive bidding procedures rather than procedures that don’t require competitive bids, which is part of Ameresco’s business model, according to an affidavit from Gene Mackey, an Ameresco senior account executive. Mackey said that one district is now considering putting out a contract with competitive bidding instead of going with Ameresco, and the superintendent of that district has contacted him about the FOIA requests and said “I think someone is bird dogging you.”
During Tuesday’s hearing, Don Craven, an attorney for the plaintiffs, told Judge Graves that contracts with public bodies involving public money should be public.
“The claim that a contract with a public body is somehow confidential, I’m not sure how that happens,” Craven said. “They were all approved by school boards in public meetings.”
Myriah Conaughty, Ameresco attorney, argued that Craven is trying to accomplish discovery in the Chatham lawsuit via FOIA requests, which is an inappropriate use of the state’s open-records law.
“The purpose of FOIA is to create government transparency,” Conaughty told the judge. “We believe that the damage that has been done with these FOIA requests cannot be repaired.”
Graves wasn’t persuaded. “Why are you asking me to issue a protective order on something that’s been through public hearings?” the judge asked before ruling against Ameresco. “Why would I do that?”
