Better Gov't Ass'n v. City of Chi.

• Decision Date: 05 August 2020
• Docket Number: No. 1-19-0038,1-19-0038
• Citation: 446 Ill.Dec. 209,169 N.E.3d 1066,2020 IL App (1st) 190038
• Parties: BETTER GOVERNMENT ASSOCIATION, Plaintiff-Appellee, v. The CITY OF CHICAGO Office of Mayor and The City of Chicago Department of Public Health, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

2020 IL App (1st) 190038

169 N.E.3d 1066

446 Ill.Dec. 209

BETTER GOVERNMENT ASSOCIATION, Plaintiff-Appellee,

v.The CITY OF CHICAGO Office of Mayor and The City of Chicago Department of Public Health, Defendants-Appellants.

No. 1-19-0038

Appellate Court of Illinois, First District, Third Division.

August 5, 2020

Mark A. Flessner, Corporation Counsel, of Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, and Ellen Wight McLaughlin, Assistant Corporation Counsel, of counsel), for appellants.

Joshua Burday, Matthew Topic, and Merrick Wayne, of Loevy & Loevy, Chicago, for appellee.

JUSTICE COBBS delivered the judgment of the court, with opinion.

¶ 1 This matter arises from two Freedom of Information Act (FOIA) ( 5 ILCS 140/1 et seq. (West 2016)) requests submitted by plaintiff, the Better Government Association (BGA) to defendants, the City of Chicago Office of Mayor (Mayor's Office) and the City of Chicago Department of Public Health (CDPH). The BGA's requests sought records related to the discovery of lead in the drinking water at Chicago Public Schools (CPS). Defendants appeal from an order of the circuit court directing them to inquire whether relevant records exist in certain of their officials' personal text messages and e-mail accounts. Defendants primarily argue that these communications are not subject to FOIA because they lack the requisite nexus to a public body. For the following reasons, we affirm the circuit court's order.

¶ 2 I. BACKGROUND

¶ 3 The BGA is a not-for-profit watchdog corporation dedicated to "protect[ing] the integrity of the political process in Chicago." On June 7, 2016, the BGA submitted FOIA requests to both the Mayor's Office and CDPH, requesting "[a]ny and all communication * * * between Public Health Commissioner Julie Morita and anybody in the mayor's office and press office from April 1, 2016 to today." The BGA subsequently narrowed its requests to "anything related to lead and CPS" involving Eileen Mitchell, Adam Collins, Kelley Quinn, or Mayor Rahm Emanuel in the Mayor's Office and "any and all communication" between Morita and CPS officials Forest Claypool, Doug Kucia, Jason Kierna, Emily Bittner, or Michael Passman. In response, defendants produced some records and redacted or withheld others under various exemptions in section 7(1) of FOIA (id. § 7(1)).

¶ 4 On April 11, 2017, the BGA filed a complaint in the circuit court, claiming that defendants violated FOIA by improperly redacting or withholding nonexempt records and by failing to inquire whether the personal text messages and e-mails of the officials named in the requests contained responsive records. The complaint alleged that the Mayor's Office was aware that its officials named in the request had used their personal e-mail accounts to discuss public business. In their amended answer, defendants contended that their redactions and withholdings were proper. The Mayor's Office also admitted that the four officials named in the request used their personal e-mail accounts for public business but maintained that it had no obligation or ability to search those accounts for responsive records.

¶ 5 On August 21, 2017, the BGA filed a motion for partial summary judgment on the grounds that some of defendants' redactions were improper. In response, defendants argued that they were entitled to summary judgment because they conducted a reasonable search for records and made only appropriate redactions.

¶ 6 Following a hearing on the parties' cross-motions for summary judgment, the circuit court entered an order requiring defendants to submit supplemental affidavits about the nature of their searches. The court also required defendants to provide unredacted copies of the records they produced for in camera review. In response to defendants' supplemental briefing, the BGA produced evidence that Collins, Quinn, and Mayor Emanuel had communicated about public business via text message.

¶ 7 After a second round of argument, the court found that defendant's redactions were proper. However, the court also found that defendants did not perform a reasonable search because they failed to include the personal text messages and e-mails of the relevant officials. Consequently, the court ordered defendants to "make inquiries as required to email custodians and supply affidavits from custodians regarding same" within 28 days. The court later granted defendants' motion to stay the order and included a finding that the order was appealable under Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016). This appeal followed.

¶ 8 II. ANALYSIS

¶ 9 "FOIA cases are typically and appropriately decided on motions for summary judgment." Moore v. Bush , 601 F. Supp. 2d 6, 12 (D.D.C. 2009). Summary judgment is appropriate only where "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 2018). Summary judgment is a drastic means of disposing of litigation that should be granted only where the right of the moving party is clear and free from doubt. Lewis v. Lead Industries Ass'n , 2020 IL 124107, ¶ 15, ––– Ill.Dec. ––––, ––– N.E.3d ––––. Where, as here, the parties file cross-motions for summary judgment, they agree that there is only a question of law involved and invite the court to resolve the litigation based solely on the record. Illinois Insurance Guaranty Fund v. Priority Transportation, Inc. , 2019 IL App (1st) 181454, ¶ 53, 438 Ill.Dec. 401, 146 N.E.3d 155. A reviewing court may affirm a circuit court's ruling on a motion for summary judgment on any basis in the record, regardless of the reasoning employed by the circuit court. Kainrath v. Grider , 2018 IL App (1st) 172270, ¶ 19, 426 Ill.Dec. 302, 115 N.E.3d 1224. A circuit court's ruling on cross-motions for summary judgment is reviewed de novo . Schroeder v. Sullivan , 2018 IL App (1st) 163210, ¶ 25, 422 Ill.Dec. 893, 104 N.E.3d 460.

¶ 10 A. FOIA's Applicability to Personal Text Messages and E-mail Accounts

¶ 11 The ultimate issue in this appeal is the adequacy of defendants' search for records.

The BGA maintains that the search was inadequate because, at least with respect to the named officials' personal text messages and e-mail accounts, defendants performed no search at all. As they did in the circuit court, defendants contend that they were not required to search their officials' personal accounts because the communications in those accounts are not subject to FOIA. The threshold issue thus becomes whether text messages and e-mails sent from a public officials' personal accounts can qualify as public records under FOIA. For the reasons that follow, we conclude that they can.

¶ 12 Our analysis is guided by the clear purpose of FOIA, which is " ‘to open governmental records to the light of public scrutiny.’ " Stern v. Wheaton-Warrenville Community Unit School District 200 , 233 Ill. 2d 396, 405, 331 Ill.Dec. 12, 910 N.E.2d 85 (2009) (quoting Bowie v. Evanston Community Consolidated School District No. 65 , 128 Ill. 2d 373, 378, 131 Ill.Dec. 182, 538 N.E.2d 557 (1989) ). Specifically, FOIA was enacted to effectuate "the public policy of the State of Illinois that all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of this Act." 5 ILCS 140/1 (West 2016). Section 1 of FOIA explains that "[s]uch access is necessary to enable the people to fulfill their duties of discussing public issues fully and freely, making informed political judgments and monitoring government to ensure that it is being conducted in the public interest." Id. Accordingly, FOIA is to be construed liberally to promote the public's access to governmental information. In re Appointment of Special Prosecutor , 2019 IL 122949, ¶ 25, 432 Ill.Dec. 638, 129 N.E.3d 1181.

¶ 13 Under FOIA, "public records are presumed to be open and accessible." Id. Thus, when a public body receives a proper request for information, it must comply with the request unless one of the narrow statutory exemptions applies. Illinois Education Ass'n v. Illinois State Board of Education , 204 Ill. 2d 456, 463, 274 Ill.Dec. 430, 791 N.E.2d 522 (2003). If the party seeking disclosure challenges the public body's denial of a request in a circuit court, the public body has the burden of proving that the records in question are exempt. Id. at 464, 274 Ill.Dec. 430, 791 N.E.2d 522. "To meet this burden and to assist the court in making its determination, the agency must provide a detailed justification for its claim of exemption, addressing the requested documents specifically and in a manner allowing for adequate adversary testing." (Emphasis omitted.) Baudin v. City of Crystal Lake , 192 Ill. App. 3d 530, 537, 139 Ill.Dec. 554, 548 N.E.2d 1110 (1989).

¶ 14 Here, defendants do not argue that a statutory exemption applies to their officials' personal text messages and e-mails but rather that the records sought do not qualify as "public records" within the meaning of FOIA in the first place. Section 2(c) of the FOIA defines "public records" as:

"all records, reports, forms, writings, letters, memoranda, books, papers, maps, photographs, microfilms, cards, tapes, recordings, electronic data processing records, electronic communications, recorded information and all other documentary materials pertaining to the transaction of public business, regardless of physical form or characteristics, having been prepared by or for, or having been or being used by, received by, in the possession of, or under the control of any public body." 5 ILCS 140/2(c) (West 2016).

Accordingly, there are two criteria a record must satisfy in order to qualify as a public record under FOIA. First, the record must pertain to public business rather...