Calloway v. Chi. Police Dep't

• Decision Date: 24 March 2022
• Docket Number: 1-21-0090
• Citation: 2022 IL App (1st) 210090,202 N.E.3d 1050,461 Ill.Dec. 53
• Parties: William CALLOWAY, Plaintiff-Appellee, v. The CHICAGO POLICE DEPARTMENT, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2022 IL App (1st) 210090

202 N.E.3d 1050

461 Ill.Dec. 53

William CALLOWAY, Plaintiff-Appellee,

v.The CHICAGO POLICE DEPARTMENT, Defendant-Appellant.

No. 1-21-0090

Appellate Court of Illinois, First District, FOURTH DIVISION.

Filed: March 24, 2022

Celia Meza, Corporation Counsel, of Chicago (Myriam Zreczny Kasper, Elizabeth Mary Tisher, Suzanne M. Loose, and Tara D. Kennedy, Assistant Corporation Counsel, of counsel), for appellant.

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

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

¶ 1 Plaintiff-appellee, William Calloway, brought this suit against defendant-appellant, the Chicago Police Department (CPD), seeking disclosure of certain records related to the 2019 officer-involved fatal shooting of 17-year-old M.E., pursuant to the Freedom of Information Act (FOIA) ( 5 ILCS 140/1 et seq. (West 2018)).

¶ 2 The circuit court granted plaintiff's motion for partial summary judgment and denied CPD's cross-motion for summary judgment, ruling that certain confidentiality provisions applicable to the law enforcement records of minors contained in the Juvenile Court Act of 1987 (Act) ( 705 ILCS 405/1-1 et seq. (West 2018)) did not apply to deceased minors. CPD appeals, and for the following reasons we reverse in part, affirm in part, and remand for further proceedings.

¶ 3 On February 16, 2019, 17-year-old M.E. was fatally shot by a CPD officer while M.E. attempted to flee from a vehicle that had crashed after failing to stop in response to an attempted traffic stop. On February 18, 2019, plaintiff submitted a FOIA request to CPD for "all dash cam, surveillance, and body cam video, and audio, police reports collected as part of the investigation into the fatal officer involved shooting of [M.E.]." On February 27, 2019, CPD denied this request in writing.

¶ 4 In its denial letter, CPD noted that section 7(1)(a) of FOIA exempts from disclosure "[i]nformation specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law" ( 5 ILCS 140/7(1)(a) (West 2018)), and further asserted that the Act "strictly restricts the disclosure of law enforcement records that pertain to a juvenile's arrest, charge, or investigation." CPD specifically relied on sections 1-7(C) and 5-905(5) of the Act ( 705 ILCS 405/1-7(C), 5-905(5) (West 2018)), specifically noting that section 1-7(C) provides that "[t]he records of law enforcement officers *** concerning all minors under 18 years of age must be maintained separate from the records of arrests and may not be open to public inspection or their contents disclosed to the public." Id. § 1-7(C).

¶ 5 On September 5, 2019, this court issued a decision in NBC Subsidiary (WMAQ-TV) LLC v. Chicago Police Department , 2019 IL App (1st) 181426, ¶ 4, 437 Ill.Dec. 772, 145 N.E.3d 70, in which we concluded that "FOIA's disclosure exemption for information prohibited from disclosure by state law did not apply to a request for records related to the investigation of police officers who fatally shot a minor" because such records did not fall within the confidentiality provisions of the Act. Interpreting a prior, preamended version of FOIA, this court concluded that

"the plain language of sections 1-7 and 5-905 of the Act in effect prior to the December 20, 2018, amendments governs the confidentiality of law enforcement records that focus on a minor as the subject of an investigation, arrest, or custodial detention rather than reports created to assess the conduct of public employees or officials." Id. ¶ 31.

This court therefore concluded that the trial court properly ordered CPD to release records "concerning the investigation of the police shooting of [the minor]," as those records did "not relate to the investigation, arrest or custodial detention of a minor within the meaning of the Act's confidentiality requirements." Id.

¶ 6 On September 20, 2019, plaintiff requested in writing that CPD provide a revised response to his FOIA request considering the NBC decision. CPD did not respond to this request.

¶ 7 On September 30, 2019, plaintiff filed this lawsuit in the circuit court reiterating this history and alleging that CPD had willfully and intentionally violated FOIA by failing to perform an adequate search and by failing to provide records responsive to his FOIA request, asserting that those records were nonexempt from disclosure. Plaintiff requested that the circuit court declare that CPD violated FOIA, order CPD to produce the requested records, enjoin CPD from withholding nonexempt records, and order CPD to pay civil penalties and award attorney fees and costs. CPD answered the complaint, denying it had violated FOIA by withholding the requested records or by failing to perform an adequate search.

¶ 8 Plaintiff filed a motion for partial summary judgment asserting that it was entitled to the requested records and that they should be immediately released. Therein, plaintiff argued that the records were not exempt from disclosure either because (1) this court's decision in NBC held otherwise or (2) the confidentiality provisions of the Act do not apply at all when the records in question involve a minor that is deceased. Plaintiff's motion was supported by a copy of orders entered by another circuit court judge in a separate FOIA case seeking records related to a fatal shooting of a minor, in which the judge found that the Act's privacy provisions simply did not apply at all to deceased minors. Mari v. Chicago Police Department , No. 18-CH-07141 (Cir. Ct. Cook County, Feb. 25, 2019); Mari v. Chicago Police Department , No. 18-CH-07141 (Cir. Ct. Cook County, May 29, 2019).

¶ 9 CPD responded with a cross-motion for summary judgment in which it contended that M.E. was shot after he exited the vehicle with a handgun. The records regarding this incident were inventoried under two separate Records Division (RD) case numbers. The first, RD number JC155452, contained records related to the investigation into the police involvement with M.E.’s death and had purportedly already been provided to plaintiff. The second, RD number JC155274, concerned "the CPD investigation into ME as a suspect and offender." CPD contended that these records were exempt from disclosure without an order from the juvenile court under the express language of the Act and the decision in NBC . CPD's contentions were supported by the affidavit executed by Peter Edwards, the commanding officer of CPD's FOIA unit, who generally averred to the accuracy of these contentions.

¶ 10 Plaintiff responded to CPD's motion by contending that Edwards's affidavit was insufficient to establish that the contents of RD number JC155274 were exempt from disclosure, where the affidavit contained only conclusory statements. Plaintiff also continued to press its argument that the Act's privacy provisions simply did not apply to the records of a deceased minor.

¶ 11 On November 13, 2020, the circuit court entered a written order granting plaintiff's motion for partial summary judgment, denying CPD's cross-motion for summary judgment, and requiring plaintiff to produce all the requested records by December 21, 2020. In the report of proceedings for that day, the circuit court explained that it was persuaded by the reasoning contained in the orders entered by the circuit court judge in the Mari case holding that "the Juvenile Court Act exemption ceases upon the minor's death."

¶ 12 On December 18, 2020, CPD filed a motion noting that issues regarding attorney fees and costs remained pending and asking for the entry of an order finding no just reason for delaying appeal, allowing for an interlocutory appeal pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016). The motion also sought a stay of the order requiring production of the requested records pending the outcome of an appeal. An order granting that motion was entered on January 4, 2021, and CPD filed a notice of appeal on January 27, 2021.

¶ 13 Summary judgment may be entered 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 judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 2020).

"Although the filing of cross-motions for summary judgment does not necessarily establish the lack of an issue of material fact or obligate a court to render summary judgment, it does indicate that the parties agree that the case involves a question of law and that they invite the court to decide the issues based on the record."

Shared Imaging, LLC v. Hamer , 2017 IL App (1st) 152817, ¶ 13, 416 Ill.Dec. 416, 84 N.E.3d 398.

We conduct a de novo review of a ruling on a motion for summary judgment. Bank of New York Mellon v. Wojcik , 2019 IL App (1st) 180845, ¶ 19, 435 Ill.Dec. 204, 138 N.E.3d 818.

¶ 14 The parties’ contentions regarding the relevant provisions of FOIA and the Act also present a question of statutory interpretation, which we similarly review de novo. Millennium Park Joint Venture, LLC v. Houlihan , 241 Ill. 2d 281, 294, 349 Ill.Dec. 898, 948 N.E.2d 1 (2010). The rules applicable to this task are well established and were summarized in Hendricks v. Board of Trustees of the Police Pension Fund , 2015 IL App (3d) 140858, ¶ 14, 395 Ill.Dec. 472, 38 N.E.3d 969 :

"The fundamental rule of statutory interpretation is to ascertain and give effect to the intent of the legislature. [Citation.] The most reliable indicator of that intent is the language of the statute itself. [Citation.] In determining the plain meaning of statutory language, a court will consider the statute in its entirety, the subject the statute addresses, and the apparent intent of the legislature in enacting the statute. [Citations.] If the statutory language is clear and unambiguous, it must be applied as written, without resorting

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