Dumke v. City of Chi.

• Decision Date: 28 June 2013
• Docket Number: Docket No. 1–12–1668.
• Citation: 2013 IL App (1st) 121668,994 N.E.2d 573,373 Ill.Dec. 804
• Parties: Michael DUMKE, Plaintiff–Appellant, v. The CITY OF CHICAGO, a Municipal Corporation, Defendant–Appellee.
• Court: United States Appellate Court of Illinois

2013 IL App (1st) 121668

994 N.E.2d 573

373 Ill.Dec. 804

Michael DUMKE, Plaintiff–Appellant,

v.The CITY OF CHICAGO, a Municipal Corporation, Defendant–Appellee.

Docket No. 1–12–1668.

Appellate Court of Illinois, First District, Third Division.

June 28, 2013.

John S. Elson, of Northwestern University Legal Clinic, of Chicago, for appellant.

Stephen R. Patton, Corporation Counsel, of Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, and J. Mark Powell, Assistant Corporation Counsel, of counsel), for appellee.

OPINION

Justice PIERCE delivered the judgment of the court, with opinion.

[373 Ill.Dec. 806]¶ 1 Plaintiff appeals from an order granting defendant City of Chicago's (the City) motion for summary judgment and denying his cross-motion for summary judgment. Plaintiff argues: (1) the trial court improperly held that where two public bodies possess a requested public record, the head of only one of the public bodies can waive the disclosure exemption under section 7(1)(f) of the Freedom of Information Act (FOIA or the Act) (5 ILCS140/7(1)(f) (West 2010)); (2) this court should grant summary judgment on plaintiff's claim that Mayor Richard Daley publicly cited and identified the consultant's report, thereby waiving the exemption from disclosure under section 7(1)(f) of FOIA. For the following reasons, we reverse the judgment of the trial court and grant summary judgment in favor of plaintiff.

¶ 2 BACKGROUND

¶ 3 On August 4, 2010, plaintiff submitted a FOIA request to the Chicago police department seeking all records “generated by [t]he 2009 study/assessment of Chicago Police Department operations conducted by A.T. Kearney and Civic Consulting Alliance.” Plaintiff's request came as a result of a press conference held by then-Mayor Richard Daley, wherein Daley discussed the city's intent to reassign police officers from administrative duties to patrol duty, in the attempt to fight crime on the city's troubled streets. Mayor Daley explained that the reassignments were the result of a management study requested by then-Chicago Police Superintendent Weis and conducted by Civil Consulting Alliance and A.T. Kearney. The police department responded that the request was unduly burdensome and denied the request.

¶ 4 Thereafter, on September 21, 2010, plaintiff narrowed his request to only “[a] copy of the final report of assessment of Chicago Police Department operations conducted by A.T. Kearney and Civic Consulting Alliance” (the report). On September 28, 2010, the police department notified plaintiff and the Illinois Attorney General's Public Access Counselor that it intended to deny his request under section 7(1)(f) of FOIA. 5 ILCS 140/7(1)(f) (West 2010). This decision was later affirmed by the Illinois Attorney General's Public Access Counselor.

¶ 5 On April 11, 2011, plaintiff filed a complaint against the City of Chicago, Mayor Daley and two Chicago police department FOIA officers for declaratory and injunctive relief seeking the release of various records. Counts I and II of plaintiff's complaint sought to enforce FOIA requests unrelated to the report in this case and were settled by agreement. Relevant to this appeal is plaintiff's count III, wherein he alleged that the city violated FOIA by its refusal to produce the report. In addition, plaintiff alleged that his request was not exempt from disclosure under section 7(1)(f) because he sought a public record or portions thereof which were publicly cited and identified by the mayor and/or because the requested report was final with respect to the police department's operational changes that were based on the recommendations of the report.

¶ 6 Both sides moved for summary judgment. Plaintiff argued that Mayor Daley waived the exemption in section 7(1)(f) when he discussed the report at the press conference. In opposition, defendant argued that because plaintiff had directed his FOIA request for the report to the police department, the police department was responsible for providing the report, not the mayor's office. Therefore, because the superintendent of police is the head of the police department he, and not Mayor Daley, was the head of the public body whom FOIA exclusively authorized to waive the section 7(1)(f) exemption from disclosure. The city also argued that even if Mayor Daley were authorized to waive the exemption, he did not do so when he discussed the report at the press conference.

¶ 7 After considering the parties' memoranda in support of their cross-motions for summary judgment, the trial court granted the city's motion for summary judgment as to count III of the plaintiff's complaint and denied plaintiff's cross-motion for summary judgment seeking disclosure of the report. The court ruled that even if Mayor Daley publicly cited the report, he was not empowered to waive the exemption by publicly citing the report because the police superintendent, and not the mayor, was the head of the Chicago police department and FOIA's language allowed only one head of a public body to waive the exemption. Because the court found that Mayor Daley was not the “head of the public body” empowered to waive the exemption for the report, it did not reach the other contested issue on summary judgment of whether the mayor's statements about the report at the press conference were sufficient to be deemed public citation and identification of the report.

¶ 8 ANALYSIS

¶ 9 Plaintiff argues that this court should grant summary judgment on his claim because Mayor Daley publicly cited and identified the report, thereby waiving the exemption from disclosure found in section 7(1)(f) of FOIA. The City is foregoing its argument in this court that the superintendent of the police department is the “head of the public body” within the meaning of section 7(1)(f) and only the superintendent, and not the mayor or any other official, could waive the exemption. Despite the fact that plaintiff raises several claims here, the City asserts that the sole issue is whether Mayor Daley waived the exemption in section 7(1)(f) of FOIA. We believe this issue is dispositive.

¶ 10 However, because this issue may arise in the future, we want to address the trial court's finding that because the FOIA request was directed at the police department “only one person may be the ‘head of the public body’ and therefore, have the ability to waive the § 7(1)(f) exemption.” As later discussed, section 7(1)(f) exempts from disclosure predecisional records unless they are publicly cited and identified by the “head of the public body.” 5 ILCS 140/7(1)(f) (West 2010). The Act defines “public body,” to include “all legislative, executive, administrative, or advisory bodies of the State, * * *counties, townships, cities * * * and all other municipal corporations * * * [and] any subsidiary bodies of any of the foregoing.” 5 ILCS 140/2(a) (West 2010). “ ‘Head of the public body’ means the president, mayor, chairman, presiding officer, director, superintendent, manager, supervisor or individual otherwise holding primary executive and administrative authority for the public body, or such person's duly authorized designee.” 5 ILCS 140/2(e) (West 2010). While we agree with the trial court that the police department is a public body ( Board of Regents of the Regency University System v. Reynard, 292 Ill.App.3d 968, 978, 227 Ill.Dec. 66, 686 N.E.2d 1222 (1997)) (under the FOIA, a subsidiary public body is itself a public body for purposes of complying with the requirements of the statute)), that its superintendent is its chief executive officer ¹ and that only one person can be the head of a public body, we disagree with the conclusion that only the police superintendent could waive the applicable exemption for the report. It is undisputed that the City of Chicago is a public body that was in possession of the report and that Richard Daley was mayor and chief executive officer ² of the City when he referred to the report in the press conference. Even though plaintiff directed his FOIA request at the police department, based on information he received from the city's website instructing him to make this FOIA request to that department, the trial court erred when it found that the superintendent of police was the only public officer that possessed the report and had the duty to disclose it. The trial court gave too narrow an application of the word “superintendent” used in 2(e). Clearly, in enacting the Act the legislature could not include every title that might exist for the thousands of positions in government subject to the statute and to accommodate this fact it used the term “or such person's duly authorized designee.” 5 ILCS 140/2(e) (West 2010). Because the mayor, as the chief executive officer of the City of Chicago is, by definition, the head of the public body at issue and he used, received, and possessed the report, the trial court erred when it found that the mayor could not waive the exemption from disclosure by citing and identifying the report. 5 ILCS 140/2(e) (West 2010) (Documents that are subject to disclosure under FOIA are those “having been or being used by, received by, in the possession of, or under the control of any public body.”). Accordingly, we hold that the trial court erred when it granted summary judgment in favor of the City on the ground that the mayor was not the head of the public body that was responsible under FOIA for tendering the report.

¶ 11 We now turn to the core of plaintiff's claim. Plaintiff requests summary judgment in his favor finding the report lost its exemption from disclosure based on the statements of the mayor during a press conference dealing with police deployment in response to mounting violence in certain areas of the City. Not surprisingly, the City opposes this request. Summary judgment is appropriate where “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any...