Day v. City of Chicago

• Decision Date: 09 February 2009
• Docket Number: No. 1-08-1164.,1-08-1164.
• Parties: Arnold DAY, Plaintiff-Appellant, v. CITY OF CHICAGO, a municipal corporation, and Dana V. Starks, in his official capacity as Interim Superintended of the Chicago Police Department, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

902 N.E.2d 1144

Arnold DAY, Plaintiff-Appellant, v. CITY OF CHICAGO, a municipal corporation, and Dana V. Starks, in his official capacity as Interim Superintended of the Chicago Police Department, Defendants-Appellees.

No. 1-08-1164.

Appellate Court of Illinois, First District, First Division.

February 9, 2009.

Jon Loevy, Russell Ainsworth, Gayle Horn, and Tara Thompson, Loevy & Loevy, of Chicago, for Appellant.

Mara S. Georges, Corporation Counsel of the City of Chicago (Benna Ruth Solomon, Deputy Corporation Counsel; Myriam Zreczny Kasper, Chief Assistant Corporation Counsel; and Kerrie Maloney Laytin, Assistant Corporation Counsel, of Counsel), Chicago, for Appellees.

Justice WOLFSON delivered the opinion of the court:

In 1994, the plaintiff Arnold Day was convicted of the 1991 murder of Gerrod Irving and is currently serving a 60-year prison sentence. Plaintiff maintains he was wrongfully convicted, alleging the only evidence linking him to Irving's murder is a confession plaintiff gave to Chicago Police Department detectives Kenneth Boudreau and William Foley after he was physically tortured.

On May 3, 2007, plaintiff submitted a Freedom of Information Act (FOIA) (5 ILCS 140/1 (West 2006)) request to the Chicago Police Department, seeking:

"any and all documents prepared in connection with RD No. P223384, including but not limited to: police reports, arrest reports, rap sheets, `street files' also known as office unit working files, general progress notes, contact analysis reports, investigative files, major crime worksheets, inventory slips, plats, maps or diagrams, evidence technician reports, and lab reports."

On May 24, 2007, the Chicago Police Department ("CPD") responded by refusing to produce any of the documents, with the exception of heavily redacted copies of plaintiff's Arrest Report and the General Offense Case Report. Among the items redacted from the General Offense Case Report are: the complete narrative portion of the document; any information regarding the investigation of Irving's murder; Irving's home phone number; portions of Irving's home address; and portions of the address where Irving's murder occurred. The CPD explained portions of the General Offense Case Report were redacted under sections 7(1)(b) and (1)(c) of the FOIA (5 ILCS 140/7(1)(b), (1)(c) (West 2006)) because the "criminal investigation is ongoing." The CPD explained the remaining documents were exempt from disclosure under sections 7(1)(b), (1)(c), (1)(d), and (1)(f) of the FOIA. See 5 ILCS 140/7(1) et seq. (West 2006).

Following denial of his administrative appeal to the CPD, plaintiff filed a complaint in the circuit court against the City and the CPD superintendent under the FOIA. The City responded to plaintiff's complaint by filing a section 2-619(a)(9) (735 ILCS 5/2-619(a)(9) (West 2006)) motion to dismiss. In the memorandum in support of its motion, the City contended: (1) it offered to produce all non-exempt documents to plaintiff; (2) the documents it withheld were exempt from production under section 7(1)(c) because there was an ongoing criminal investigation "as to certain aspects of the investigation other than Mr. Day's arrest and conviction;" (3) the withheld documents were exempt from production under section 7(1)(b)(v) because they contained information "revealing the identity of persons who provided information" to the CPD; and (4) the withheld documents were exempt from production under section (1)(d) and (1)(f) because "opinions and recommendations are expressed and actions are formulated by the CPD personnel and/or the state's attorney working on the investigation." Affidavits from three CPD employees were attached in support of the memorandum.

Following a hearing, which consisted only of arguments by counsel, the trial court held "defendant has provided a detailed explanation for their exemptions under the FOIA Act, specifically that this is an ongoing investigation and that personal privacy concerns are raised," and that the records plaintiff sought "fall within the exemptions that have been argued and outlined in this presentation." Despite plaintiff's request, the trial court did not conduct an in camera review of the redacted and withheld documents. The trial court denied plaintiff's motion to reconsider. We reverse the order dismissing plaintiff's complaint and remand with instructions.

DECISION

Section 2-619(a)(9) of the Illinois Code of Civil Procedure permits involuntary dismissal where the claim asserted against the defendant "is barred by other affirmative matter avoiding the legal effect of or defeating the claim." 735 ILCS 5/2-619(a)(9) (West 2006); Van Meter v. Darien Park District, 207 Ill.2d 359, 368, 278 Ill.Dec. 555, 799 N.E.2d 273 (2003). A reviewing court must interpret all of the pleadings and supporting documents in the light most favorable to the nonmoving party. Van Meter, 207 Ill.2d at 368, 278 Ill.Dec. 555, 799 N.E.2d 273. Our review of a section 2-619 dismissal is de novo. Van Meter, 207 Ill.2d at 368, 278 Ill.Dec. 555, 799 N.E.2d 273.

Plaintiff contends the trial court erred in finding the requested documents fell within the FOIA exemptions argued and listed by City in its motion to dismiss. Specifically, plaintiff contends the City failed to satisfy its burden to show the requested documents were actually exempt from disclosure under section 7 of the FOIA. Each of the claimed exemptions will be addressed. We note the documents at issue were created at Area 2, a police department headquarters subject to past and present investigations of illegal methods of interrogation.

The FOIA's purpose is to open governmental records to the light of public scrutiny. BlueStar Energy Services, Inc. v. Illinois Commerce Commission, 374 Ill. App.3d 990, 994, 313 Ill.Dec. 153, 871 N.E.2d 880 (2007). Public records are presumed to be open and accessible. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill.2d 401, 407, 223 Ill.Dec. 641, 680 N.E.2d 374 (1997). Although the FOIA outlines several exemptions to disclosure, those exemptions are read narrowly. Lieber, 176 Ill.2d at 407, 223 Ill.Dec. 641, 680 N.E.2d 374. "Thus, when a public body receives a proper request for information, it must comply with that request unless one of the narrow statutory exemptions set forth in section 7 of the Act 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); Lieber, 176 Ill.2d at 407-08, 223 Ill.Dec. 641, 680 N.E.2d 374.

If a public body seeks to invoke one of the section 7 exemptions as grounds for refusing disclosure, "it is required to give written notice specifying the particular exemption claimed to authorize the denial." Illinois Education Ass'n., 204 Ill.2d at 464, 274 Ill.Dec. 430, 791 N.E.2d 522. If the party seeking disclosure challenges the public body's denial in circuit court, the public body has "the burden of proving that the records in question fall within the exemption it has claimed." Illinois Education Ass'n., 204 Ill.2d 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 claimed exemption, addressing the requested documents specifically and in a manner allowing for adequate adversary testing.'" (Emphasis in original.) Illinois Education Ass'n., 204 Ill.2d at 464, 274 Ill.Dec. 430, 791 N.E.2d 522, quoting Baudin v. City of Crystal Lake, 192 Ill.App.3d 530, 537, 139 Ill.Dec. 554, 548 N.E.2d 1110 (1989).

Under section 11(f) of the FOIA, the circuit court "shall conduct such in camera examination of the requested records as it finds appropriate to determine if such records or any part thereof may be withheld under any provision of this Act." 5 ILCS 140/11(f) (West 2006); Illinois Education Ass'n., 204 Ill.2d at 469, 274 Ill.Dec. 430, 791 N.E.2d 522. Our supreme court has interpreted this section to mean "the circuit court need not conduct in camera review where the public body meets its burden of showing that the statutory exemption applies by means of affidavits." Illinois Education Ass'n., 204 Ill.2d at 469, 274 Ill.Dec. 430, 791 N.E.2d 522. Affidavits will not suffice, however, "if the public body's claims are conclusory, merely recite statutory standards, or are too vague or sweeping." Illinois Education Ass'n., 204 Ill.2d at 469, 274 Ill.Dec. 430, 791 N.E.2d 522.

I. Ongoing Criminal Investigation Exemption

The City contends the documents at issue were exempt under section 7(1)(c)(i) and (1)(c)(viii) of the FOIA because disclosure would obstruct an ongoing criminal investigation into Irving's murder. The plaintiff counters the City did not adequately show the purported criminal investigation was actually "ongoing."

Section 7(1)(c)(i) exempts records where disclosure would "interfere with pending or actually contemplated law enforcement proceedings concluded by any law enforcement or correctional agency." 5 ILCS 140/7(1)(c)(i) (West 2006). Section 7(1)(c)(viii) exempts records where disclosure would "obstruct an ongoing criminal investigation." 5 ILCS 140/7(1)(c) (viii) (West 2006).

In Illinois Education Ass'n., the issue presented was whether material the Illinois State Board of Education (Board) provided to the Illinois Attorney General was protected from disclosure under the attorney-client exemption to the FOIA. The supreme court held the affidavits submitted in support of the exemption were merely conclusory and inadequate to sustain the Board's burden of proof. Illinois Education Ass'n., 204 Ill.2d at 469, 274 Ill.Dec. 430, 791 N.E.2d 522.

The supreme court held that in meeting its burden to demonstrate an exemption is applicable, a public body may not:

"simply treat the words `attorney-client privilege' or `legal advice' as some talisman, the mere utterance of which magically casts a spell of secrecy over the documents at issue. ...