Kopchar v. City of Chicago

• Decision Date: 06 November 2009
• Docket Number: No. 1-08-1835.,1-08-1835.
• Citation: 919 N.E.2d 76
• Parties: Charles W. KOPCHAR, Plaintiff-Appellant, v. The CITY OF CHICAGO, a Municipal Corporation, and Human Performance Systems, Inc., a Foreign Corporation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

919 N.E.2d 76

Charles W. KOPCHAR, Plaintiff-Appellant, v. The CITY OF CHICAGO, a Municipal Corporation, and Human Performance Systems, Inc., a Foreign Corporation, Defendants-Appellees.

No. 1-08-1835.

Appellate Court of Illinois, First District, Fifth Division.

November 6, 2009.

Cohn & Cohn, Chicago, IL, for Plaintiff-Appellant, Charles W. Kopchar.

Mara S. Georges (Benna Ruth Solomon, Myriam Zreczny Kasper, Jennifer Erickson Baak of counsel), Chicago, IL, for Defendants-Appellee, City of Chicago.

Presiding Justice TOOMIN delivered the opinion of the court:

We are asked to determine whether section 7 of the Freedom of Information Act (FOIA) (5 ILCS 140/7 (West 2006)) requires disclosure of the criteria or standards used to evaluate the physical abilities tests administered to firefighter applicants. We hold it does not.¹ Plaintiff brought claims against the City of Chicago (City) and its outside testing administrator, Human Performance Systems, Inc. (HPS), alleging that HPS had misrepresented the results of plaintiff's performance in a firefighter's physical abilities test that it administers for the Chicago Fire Department, and that the City had refused to honor FOIA requests for copies of criteria or standards used to evaluate physical abilities tests administered to firefighter applicants. Plaintiff also sought a mandatory injunction against the City to compel a second opportunity to take the test or, alternatively, a position in the Firefighter's Academy. The circuit court dismissed the claims against HPS, finding that because it performed a quasi-judicial function it had absolute immunity from suit and dismissed the claim for injunctive relief against the City, concluding that plaintiff had failed to show a clear right to relief. Summary judgment was subsequently entered on the FOIA claims and plaintiff now appeals. For the following reasons, we affirm.

BACKGROUND

On June 5, 1995, plaintiff filed an application with the City of Chicago for the position of firefighter with the Chicago Fire Department. Shortly thereafter, plaintiff took a written examination, which he passed. Over 10 years later, on March 30, 2006, the City informed plaintiff by mail that he should fill out a card to participate in the next phase of testing, the physical abilities test. Plaintiff returned the card and on May 23, 2006, he participated in the physical abilities test. However, on June 9, 2006, plaintiff was notified that he did not achieve a passing score on the test and would no longer be considered for the position.

In turn, plaintiff sent a letter to Patricia Ciara, who was then the director of personnel of the Chicago Fire Department, stating that he believed the test result was in error, that he was in excellent physical condition, and requesting a review of the results pursuant to the Freedom of Information Act. Thereafter, Ciara informed plaintiff that the testing consultant reviewed the results and found no error in the calculation of the results.

On November 29, 2006, plaintiff sent a FOIA request to the Chicago Fire Department (CFD), requesting "[t]he test results of the Firefighter Physical Abilities Test" and "the criteria that the Department uses to determine pass/fail." On December 6, 2006, the Department denied his request pursuant to FOIA exemption section 7(1)(j). 5 ILCS 140/7(1)(j) (West 2004).

On December 12, 2006, gave notice to the City's law department, appealing the denial of his FOIA request. In response, the law department notified plaintiff that it would provide him his test score, and attached a copy of the Firefighter's Physical Abilities Test Guide, which described the tasks covered by the test, but upheld the denial of the other information plaintiff requested, pursuant to FOIA exemption section 7(1)(j). On January 12, 2007, the law department provided plaintiff his cumulative physical abilities test score, which was "487." However, no further interpretive information was provided.

Thereafter, plaintiff forwarded another FOIA request to the City seeking the identity of the independent contractor that administered the test, and "[t]he expected standards that the Fire Department requires of Firefighter Applicants to pass the Physical Abilities Test." Having received no response, on February 5, 2007, plaintiff sent an appeal letter to the City. On February 15, 2007, the City identified the independent contractor that administered the test, HPS, and directed plaintiff to a website where he could find further information. The City also noted it had already provided plaintiff with a copy of the Firefighter Physical Abilities Test Guide and, to the extent he requested other materials, that request was denied pursuant to FOIA exemptions section 7(1)(j) and section 7(1)(w). 5 ILCS 140/7(1)(j), 7(1)(w) (West 2006). The letter further stated that it was a final denial, and thereafter plaintiff would have to seek judicial review of the City's determination.

On April 4, 2007, plaintiff filed the instant suit against the City of Chicago, the fire department, and HPS. Count I of plaintiff's original complaint alleged a cause of action based on the Act for the City's refusal to provide the testing standards to verify the City's assertion that he failed the test. Count II alleged that HPS and/or the City, either negligently or intentionally misreported the test results and sought injunctive relief against the City compelling either retesting after being provided with the test criteria or, in the alternative, admission to the Firefighter's Academy and backpay for the period of time he was denied the position.

The City moved to dismiss count I pursuant to pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2006)), maintaining that the complaint was legally deficient because plaintiff failed to allege that he exhausted his administrative remedies and did not attach his FOIA request. The City also moved to dismiss count II pursuant to both sections 2-615 and 2-619 (735 ILCS 5/2-615, 2-619 (West 2006)), for failure to allege a clearly ascertainable right or irreparable harm. HPS moved to dismiss, alleging that because it performed a quasi-judicial function it was cloaked with absolute immunity from suit. Thereafter, the court entered an order dismissing plaintiff's claim for a mandatory injunction, and dismissing all claims against HPS with prejudice. The CFD was dismissed by agreement of the parties.

Pursuant to the dismissal order, plaintiff was allowed to amend count I brought under the FOIA. However, the City filed a motion for more definitive statement, and by agreed order, plaintiff was given leave to file a second amended complaint. Plaintiff's second amended complaint alleged two counts against the City for the denial of plaintiff's FOIA requests. In turn, the circuit court entered a final order granting the City's motion for summary judgment, finding that the information requested fell within the exemptions, specifically section 7(1)(j). Plaintiff appeals the order dismissing count II of his original complaint against the City and dismissing HPS, as well as the final order granting summary judgment on his FOIA claims.

ANALYSIS

Plaintiff first contends that the circuit court erred in finding that his FOIA requests for the firefighter physical testing and scoring criteria fell within the FOIA's exemptions. As the issue of whether plaintiff's requests are exempt from disclosure under the FOIA is a matter of statutory construction, and because we are reviewing a grant of summary judgment, our review is de novo. Stern v. Wheaton-Warrenville Community Unit School District 200, 233 Ill.2d 396, 404, 331 Ill.Dec. 12, 910 N.E.2d 85, 91 (2009). Summary judgment is appropriate where the pleadings, depositions, affidavits, and admissions on file, when viewed in the light most favorable to the nonmoving party, show that no genuine issue of material fact exists and that the moving party is entitled to a judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2006).

We have previously determined that the purpose of the FOIA is to open governmental records to the light of public scrutiny. BlueStar Energy Services, Inc. v. Illinois Commerce Comm'n, 374 Ill. App.3d 990, 994, 313 Ill.Dec. 153, 871 N.E.2d 880 (2007). Although the FOIA outlines several exemptions to disclosure, those exemptions are read narrowly. Day v. City of Chicago, 388 Ill.App.3d 70, 73, 327 Ill.Dec. 758, 902 N.E.2d 1144, 1147 (2009), citing Lieber v. Board of Trustees of Southern Illinois University, 176 Ill.2d 401, 407, 223 Ill.Dec. 641, 680 N.E.2d 374, (1997). "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, 527 (2003). If the public body contesting disclosure can prove that a requested document falls within a category specifically enumerated in FOIA section 7, "the document shall be per se exempt from inspection and copying and `no further inquiry by the court is necessary.'" Chicago Alliance for Neighborhood Safety v. City of Chicago, 348 Ill.App.3d 188, 199, 283 Ill.Dec. 506, 808 N.E.2d 56, 64 (2004), quoting Lieber, 176 Ill.2d at 408, 223 Ill.Dec. 641, 680 N.E.2d at 377. Under the per se analysis, any documents that fit within one of the specifically enumerated statutory exemptions are absolutely exempt from disclosure. Copley Press, Inc. v. Board of Education, 359 Ill.App.3d 321, 324, 296 Ill.Dec. 1, 834 N.E.2d 558, 561 (2005). Thus, we turn to an analysis of the FOIA.

The FOIA specifically exempts "[t]est questions, scoring keys and other examination data used to administer an academic examination or determine the qualifications of an applicant for a license or employment." 5 ILCS 140/7(1)(j) (West 2006). As the parties acknowledge, the only...