Kelly v. Vill. of Kenilworth
| Decision Date | 21 June 2019 |
| Docket Number | No. 1-17-0780,1-17-0780 |
| Citation | 441 Ill.Dec. 145,156 N.E.3d 480,2019 IL App (1st) 170780 |
| Parties | John Q. KELLY, Plaintiff-Appellant, v. The VILLAGE OF KENILWORTH, the Illinois State Police, the Cook County State's Attorney's Office, and the Cook County Medical Examiner, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
2019 IL App (1st) 170780
156 N.E.3d 480
441 Ill.Dec. 145
John Q. KELLY, Plaintiff-Appellant,
v.
The VILLAGE OF KENILWORTH, the Illinois State Police, the Cook County State's Attorney's Office, and the Cook County Medical Examiner, Defendants-Appellees.
No. 1-17-0780
Appellate Court of Illinois, First District, Fifth Division.
Filed June 21, 2019
Rehearing denied July 22, 2019
Modified opinion filed July 26, 2019
Matthew V. Topic and Joshua Hart Burday, of Loevy & Loevy, of Chicago, for appellant.
Barbara A. Adams, Christopher J. Murdoch, and Benjamin L. Schuster, of Holland & Knight LLP, of Chicago, for appellee Village of Kenilworth.
Kwame Raoul, Attorney General, of Chicago (David L. Franklin, Solicitor General, and Linda Boachie-Ansah, Assistant Attorney General, of counsel), for appellee Illinois State Police.
Kimberly M. Foxx, State's Attorney, of Chicago (Kent S. Ray, Cristin Duffy, and Hailey M. Golds, Assistant State's Attorneys, of counsel), for other appellees.
JUSTICE LAMPKIN delivered the judgment of the court, with opinion.
¶ 1 In 1966, 21-year-old Valerie Percy was murdered at her home in the Village of Kenilworth (Kenilworth). Her murder remains unsolved. As the fiftieth anniversary of her death approached, plaintiff, John Q. Kelly, filed requests under the Illinois Freedom of Information Act (FOIA) ( 5 ILCS 140/1 et seq. (West 2016)) for information concerning the murder investigation. Specifically, he filed requests with Kenilworth, the Illinois State Police (ISP), the Cook County State's Attorney's Office (CCSAO), the Cook County Medical Examiner (CCME) and the Chicago Police Department (CPD). When those public bodies declined to turn over documents, Kelly filed this action against them in the circuit court, although his claim against the CPD was later voluntarily dismissed. Following the submission of affidavits and the court's in camera inspection of certain documents in the remaining defendants' files, the court entered summary judgment in defendants' favor, requiring only that CCME turn over a small portion of documents.
¶ 2 On appeal, Kelly asserts that defendants did not meet their burden of demonstrating
that all withheld records were exempt from disclosure. According to Kelly, the procedures used below did not present the court with an adequate factual basis to determine whether an exemption applied to all withheld records and denied him the opportunity to engage in adversarial testing. We reverse and remand for further proceedings.
¶ 3 I. BACKGROUND
¶ 4 On September 18, 1966, an intruder entered Valerie's bedroom, inflicted two blows to her head and stabbed her 10 times. At that time, Kenilworth and the surrounding area lacked a major crimes task force. Kenilworth initially pursued the investigation with help from the surrounding communities and the ISP. Eleven days after the murder, however, the ISP was placed in charge. In the first few years of the investigation, the ISP investigated approximately 1190 leads. The investigation ebbed and flowed over the next decades, and the ISP turned over the investigation to Kenilworth in 2002. In 2014, the North Regional Major Crimes Task Force/Percy Homicide Task Force was created.1 Its members include the Kenilworth Police Department, the Northbrook Police Department, the Wilmette Police Department, the Evanston Police Department, and a special agent from the Federal Bureau of Investigation (FBI).
¶ 5 In January 2016, Kelly tendered FOIA requests to defendants, seeking all records pertaining to the investigation into Valerie's murder, including investigative reports, witness interviews, follow-up reports, photos, evidence vouchers, forensic testing results, audio and video recordings, transcripts, findings, conclusions, summaries of witness testimony, notes, memos, and correspondence.2 Kenilworth denied Kelly's request in its entirety, stating that "[t]he Specified Records were created in the course of administrative enforcement proceedings, or for law enforcement purposes, and disclosure would * * * obstruct or interfere with an active or ongoing criminal investigation by the Village," citing, in pertinent part, the exemption found in section 7(1)(d)(vii) of FOIA. Id. § 7(1)(d)(vii). The CCSAO also denied the request pursuant to sections 7(1)(d)(i) and 7(1)(d)(vii). Id. § 7(1)(d)(i), (vii). Furthermore, while it initially appeared that the ISP was prepared to turn over documents, it ultimately denied Kelly's request after determining that the case was still open. The ISP determined that the information requested would interfere with a pending or reasonably contemplated law enforcement proceeding. The CCME never responded. No defendant cited the exemption found in section 3(g) of FOIA, which applies to "unduly burdensome" requests. Id. § 3(g).
¶ 6 In April 2016, Kelly filed the instant complaint against defendants, asserting they willfully and intentionally violated FOIA by failing to produce records responsive to a request. Kelly moved for partial summary judgment against Kenilworth, the ISP, and the CCSAO, arguing that those public bodies had the burden of proving the requested records were exempt. Kelly also argued that the ISP and the CCSAO were not conducting any investigation or enforcement proceeding and could not rely on Kenilworth's investigation to claim an exemption.
¶ 7 Kenilworth then filed a cross-motion for summary judgment, asserting that records were exempt from disclosure under
section 7(1)(d)(vii) because releasing them would interfere with and obstruct the ongoing and active investigation into Valerie's murder being conducted by Kenilworth and the North Regional Major Crimes Task Force. In support thereof, Kenilworth submitted for the circuit court's in camera review the declaration of the Kenilworth chief of police, David Miller. Kelly was initially denied access to that declaration. According to Chief Miller, Kenilworth's investigative file contained "approximately 20,000 pages of records, spanning multiple file cabinets and boxes." Significant portions of the file were stored on DVD copies of microfilm, which were not easily reviewable with modern software given the age and quality of the records. The file contained investigative reports, crime scene photographs, photographs and diagrams of the Percy home, interview notes, witness statements, letters providing tips and evidence, pathological reports, lead investigation summaries, correspondence between law enforcement agencies, and other miscellaneous records.3
¶ 8 Chief Miller stated that disclosing the information in his declaration or any portion of Kenilworth's investigative file would jeopardize the active, ongoing investigation. In his opinion, the entire file should remain confidential. Kenilworth received new leads every year and compared them to confidential information to verify or discount them. "It is impossible for us to predict when these leads will arise, where they will come from, what they will be about, or whether they will relate to a prior lead or part of the investigation." Additionally, confidential information was used to discount numerous confessions. Chief Miller expected an increase in confessions upon the publicity attending the fiftieth anniversary of the murder. According to Chief Miller, Kenilworth's recent investigation was not "limited to the passive receipt of leads from third parties" either. He provided eight pages of additional details, which were redacted from the declaration ultimately given to Kelly. Miller later added that as recently as September 2015, he had requested assistance from the CCME to analyze evidence in this case.
¶ 9 Kenilworth argued that Chief Miller's declaration showed disclosure would alert targets to the existence and nature of the investigation, allow prime suspects to tamper with evidence, discourage individuals from sharing information with investigators, and make it difficult to assess leads and confessions. Kenilworth's codefendants should also be permitted to withhold records because they were assisting in the investigation. Moreover, the entire file should be withheld. Going through each page of the investigative file "could potentially require hundreds of hours to review, analyze and redact information." Kenilworth did not, however, assert that the undue burden of compliance rendered the documents exempt from disclosure under section 3(g). Additionally, Kenilworth had not offered Kelly an opportunity to confer with Kenilworth to try to reduce the request to manageable proportions. See id. At no point has any defendant raised a section 3(g) exemption in this case.
¶ 10 Kelly responded that Kenilworth could not assert an exemption over other defendants, could not assert a blanket exemption, and had not shown that the disclosure of any specific records would interfere with the allegedly ongoing investigation. Furthermore, the burden of compliance was irrelevant to a section
7(1)(d)...
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