Lopez v. Fitzgerald

• Decision Date: 05 May 1977
• Docket Number: No. 76-336,76-336
• Citation: 368 N.E.2d 356,10 Ill.Dec. 761,53 Ill.App.3d 164
• Parties: , 10 Ill.Dec. 761 Karen LOPEZ et al., Plaintiffs-Appellees, v. Joseph F. FITZGERALD, Jr., Individually and in his official capacity, and Robert Dunn, Individually and in his official capacity, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 356

368 N.E.2d 356

53 Ill.App.3d 164, 10 Ill.Dec. 761

Karen LOPEZ et al., Plaintiffs-Appellees, v. Joseph F. FITZGERALD, Jr., Individually and in his official

capacity, and Robert Dunn, Individually and in his

official capacity, Defendants-Appellants.

No. 76-336.

Appellate Court of Illinois, First District, Fourth Division.

May 5, 1977.

Supplemental Opinion On Denial of Rehearing Oct. 6, 1977.

William R. Quinlan, Corp. Counsel by Daniel Pascale and Robert L. Thompson, Asst. Corp. Counsels, Chicago, for defendants-appellants.

Robert E. Masur, Fred L. Lieb and Seymour J. Mansfield, of Legal Assistance Foundation, Chicago, for plaintiffs-appellees.

DIERINGER, Presiding Justice.

This is an appeal from the circuit court of Cook County. The trial judge entered an order in the form of a permanent injunction, allowing the plaintiffs access to any and all records of the Building Department of the City of Chicago, and also declaring these records to be public records under the Illinois Local Records Act, Ill.Rev.Stat. (1974), ch. 116, sec. 43.101 et seq., and sec. 41-7 of the Municipal Code of Chicago.

The sole issue on appeal is whether or not the records of various investigations are public records under the statute and the Municipal Code.

The facts of the case are, the plaintiffs are individuals and community organizations who claim an interest in the reports of the building inspectors of the Building Department of the City of Chicago. The Commissioner of Buildings refused to allow them to inspect or copy the various preliminary investigatory reports of his inspectors. This suit followed. After numerous pleadings, affidavits, hearings and amendments, the trial judge entered an injunction in favor of the plaintiffs, which stated that all the records of the Building Department could be viewed as public records and anyone should be allowed to view them and to make copies of them. This appeal is taken from the permanent injunction and final order.

The central area of our concern is whether these various preliminary investigatory reports are public records and thereby should be disclosed. The Illinois Local Records Act, Ill.Rev.Stat. (1975), sec. 43.102 provides:

"This Act declares that a program for the efficient and economical management of local records will promote economy and efficiency in the day-by-day record-keeping activities of local governments and will facilitate and expedite governmental operations."

This is the Legislative Declaration, the intent of the legislature in enacting the statute. It is plainly clear the legislature intended to "facilitate and expedite" the operation of local government. We do not believe the order and injunction of the trial court would serve this purpose. In fact, this order and injunction would greatly burden and ultimately halt local government operations.

Chapter 41, section 7 of the Municipal Code of Chicago provides that reports of building inspection are public records. However, this means final reports, not preliminary reports. In the Building Department of the City of Chicago, a building inspector's report is a preliminary investigation of a complaint by a citizen, or simply a periodic check of a structure. The inspector notes the possibility of certain types of violations and then turns the report in to his supervisor. The supervisor then goes over the report and, if in his opinion it is warranted, he refers it to the appropriate (elevator, electrical, etc.) division for their review. Then, if the experts in the particular division decide it is necessary, they send out their own inspectors, who are trained in the various building construction specialties to make inspections and issue summonses for an appearance in housing court. After the experts go out and file their "final" report, the records should be available as public records. Thus, if a notice for compliance, a compliance hearing or court action is taken, then the records are public records. The original report of the building inspector is merely a list of areas for further inspection and is by no manner or means a complete list of violations. To disclose to the general public a speculative report such as this would be a great disservice, both to the property owners and to the public at large. Although there is no statutory right to obtain disclosure, there does exist a limited common law duty to disclose, as recognized by this court in People ex rel. Better Broadcasting Council v. Keane (1973), 17 Ill.App.3d 1090, 309 N.E.2d 362.

To carry the trial judge's thinking to its logical conclusion, every report made by a detective to his supervising sergeant in the Police Department would be open to public inspection. This would cripple police investigation. Any such preliminary investigative report is necessarily made up, in some part, of speculation, rumor, and guesswork. The same situation exists in the Health Department. A health inspector may make various observations on sanitary facilities or a kitchen in a restaurant, but he may need the work of the laboratory before he can make a reasoned judgment on the cleanliness or lack thereof in a particular facility. If this injunction were allowed to stand, the Department of Planning would be setting off widespread land speculation every time it made a study of an area for any purpose whatsoever, and made a preliminary report with suggestions of various possibilities.

As this court said in People ex rel. Better Broadcasting Council v. Keane :

"The people's right to know, however, must be balanced by the practical necessities of governing. Public officials must be able to gather a maximum of information and discharge their official duties without infringing on rights of privacy. . . . Therefore, it is important to consider whether disclosure would constitute an invasion of privacy; whether there could be prejudice to private rights or give an unfair competitive advantage; whether it would discourage frankness; and whether it could cut off sources of information upon which a government relies." Ibid., 1092-1093, 309 N.E.2d 364.

It is the weight of authority from other jurisdictions that a preliminary investigative report does not qualify as a public record, and as such should not be disclosed to the public at large. The Iowa Supreme Court said in the case of Linder v. Eckard (1967), 261 Iowa 216, 152 N.W.2d 833:

"We find that the appraisals are but preliminary matters of investigation to assist the city in deciding whether to adopt an urban renewal plan. Obviously such a determination is ordinarily made only after inquiry and investigation concerning its feasibility. This necessarily results in the accumulation of much tentative and experimental data assembled to assist in the ultimate decision. Until acted upon, material of this kind does not assume the status of public record or writing. This has been the usual holding in other courts." Ibid., 835. In Oregon, the state Supreme Court took note of the fact there was a state statute which allowed the inspection of any document in the hands of state officials and then went on to say:

"The public's right of inspection is not without qualification. There may be circumstances under which the information contained in a record can be justifiably withheld from the person seeking it . . . Even where the request is made for a lawful purpose the public interest may require that the information be withheld." MacEwan v. Holm (1961), 226 Or. 27, 359 P.2d 413, at 420, 421.

In the instant case, the release of preliminary investigative reports which are speculative in that they are not binding decisions until verified by expert opinion and formalized as a complaint to the owner, would be unfair to the owners of the building. The complaint is the first notice given the owner of an alleged violation. The release of preliminary...