People ex rel. Birkett v. City of Chicago, No. 84452

• Court: Supreme Court of Illinois
• Writing for the Court: FREEMAN
• Citation: 184 Ill.2d 521,705 N.E.2d 48,235 Ill.Dec. 435
• Parties: , 235 Ill.Dec. 435 The PEOPLE of the State of Illinois ex rel. Joseph E. BIRKETT, State's Attorney of Du Page County, et al., Appellees, v. The CITY OF CHICAGO, Appellant.
• Decision Date: 17 December 1998
• Docket Number: No. 84452

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705 N.E.2d 48 184 Ill.2d 521, 235 Ill.Dec. 435 The PEOPLE of the State of Illinois ex rel. Joseph E.
BIRKETT, State's Attorney of Du Page County, et
al., Appellees,
v.
The CITY OF CHICAGO, Appellant. No. 84452. Supreme Court of Illinois. Dec. 17, 1998.

[184 Ill.2d 522] Benna Ruth Solomon, Chief Assistant Corporation Counsel, Chicago, Joseph M. Laraia, Wheaton, Anton R. Valukas, Jenner & Block, Chicago, for the City of Chicago.

Joseph V. Karaganis, Karaganis & White, Ltd., Chicago, Joseph Birkett, State's Attorney DuPage County, Wheaton, for the People ex rel. Birkett.

Benjamin Wolf, Chicago, for American Civil Liberties Union of Illinois.

Bruce R. Pfaff, Bruce Robert Pfaff & Associates, Ltd., Chicago, for Illinois Trial Lawyers.

Chief Justice FREEMAN delivered the opinion of the court:

In this appeal, we are asked to recognize a "deliberative process privilege" to protect certain advice and discussions between government officials concerning formulation of governmental decisions and policy. For the

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[235 Ill.Dec. 436] reasons that follow, we hold that the adoption of a [184 Ill.2d 523] privilege as broad-based as that sought in this case is best left to the legislature. BACKGROUND

Defendant, the City of Chicago (City), brought this appeal from a trial court order holding it in contempt for refusing to produce certain documents sought by plaintiffs, Du Page County, the Du Page County State's Attorney, and the municipalities of Bensenville, Elmhurst and Wood Dale, during the course of underlying litigation. In the underlying suit, plaintiffs requested declaratory and injunctive relief, alleging as follows. Plaintiffs are located in close proximity to O'Hare International Airport, which is owned and operated by the City, and have suffered ongoing severe noise, air pollution and safety concerns resulting from incoming and outgoing flights. Plaintiffs charged that the City had completed extensive construction to O'Hare, without obtaining a certificate of approval from the Illinois Department of Transportation (IDOT) as required under the Illinois Aeronautics Act (Act) (620 ILCS 5/47 (West 1994)). In addition, the City had plans to proceed with even larger new expansion and alteration projects, all without procuring the required certificate from IDOT. According to plaintiffs, the City was deliberately embarking on a scheme of incremental construction ventures, with the purpose of greatly expanding airport capacity while circumventing IDOT approval as required under the Act. Thus, the complaint requested that the City's prior construction be declared in violation of the Act and that its current expansion be halted unless it procured the required certificate of approval.

On February 2, 1996, plaintiffs served the City with a request to produce, in relevant part, all documents concerning applications for certificates of approval under the Act; documents relating to construction projects for O'Hare since 1970; all documents concerning plans or [184 Ill.2d 524] discussions regarding alterations to increase O'Hare's capacity, or concerning past, present, or proposed "airport layout plans" for the airport. The City objected to the request asserting, inter alia, that the documents were irrelevant to the present litigation and were immune from discovery under the "deliberative process privilege." Plaintiffs moved to compel production of the documents, arguing that the City had failed to properly assert the privilege by submitting a privilege log or by identifying the documents supposedly covered by the privilege.

In its response to plaintiffs' motion to compel, the City agreed to produce "all requested documents relating to past and current construction projects at O'Hare," including documents relating to projects approved for the future. However, the City declined to produce documents relating to "discussions," "plans" or "forecasts" concerning future projects as yet unapproved, claiming that such documents were covered under the deliberative process privilege. The City also refused to release the privileged documents under a protective order, arguing that such an order would hinder the ability of City officials to engage in deliberations free of outside intrusions. The City's response to the motion to compel was supported by several exhibits, including the affidavit of Renee C. Benjamin, deputy commissioner for policy and procedure for Chicago's department of aviation (hereinafter department). In the affidavit, Benjamin attested to the confidentiality of the documents alleged to be privileged. The City subsequently filed a supplemental affidavit of Kitty Freidheim, deputy commissioner for planning for the department.

After a hearing on May 20, 1996, the trial court granted plaintiffs' motion and compelled the immediate production of the requested documents. The court rejected a subsequent motion by the City for clarification [184 Ill.2d 525] and reconsideration of this ruling, and entered an order stating that the privilege was not valid in Illinois and that the City must produce all documents withheld under the claim of privilege. The court also gave the City leave to submit logs accompanying the allegedly privileged documents, and stated that the court would keep these documents under seal.

Shortly thereafter, the court entered a protective order encompassing all of the allegedly confidential documents and restricting plaintiffs' use and disclosure of these

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[235 Ill.Dec. 437] documents. Nonetheless, the City informed the court that it intended to withhold the documents from plaintiffs until the appellate court could rule on its privilege claim.

On November 4, 1996, after again having ordered that the documents be released to plaintiffs subject to the protective order, the court granted a motion by the City to be held in contempt in order to properly appeal the rejection of its claim of deliberative process privilege. The court also entered an "access order" granting plaintiffs' counsel in camera access to the documents filed under seal. The access order provided that enforcement would be stayed to allow the City time to appeal.

On appeal, the appellate court initially stayed the access order. It then, inter alia, affirmed the court's refusal to recognize the deliberative process privilege, finding that creation of the privilege was best left to the legislature. The court further rejected the argument that protection of deliberative documents was in the public interest. 292 Ill.App.3d 745, 226 Ill.Dec. 717, 686 N.E.2d 66. We granted leave to appeal (134 Ill.2d R. 315(b)), and now affirm the decision of the appellate court rejecting the deliberative process privilege. ¹

[184 Ill.2d 526] ANALYSIS

Defendant urges that we adopt a common law deliberative process privilege to exempt from discovery "confidential advice given to those involved in making [decisions and] policy for state and local government." Within this realm, defendant seeks protection of all confidential documents prepared in connection with yet unapproved plans to alter or expand the airport.

Widely recognized in the federal courts, the deliberative process privilege protects certain classes of intra-agency communications offered in the course of governmental decisionmaking. See Kaiser Aluminum & Chemical Corp. v. United States, 141 Ct.Cl. 38, 157 F.Supp. 939 (Ct.Cl.1958); see also United States v. Farley, 11 F.3d 1385, 1389 (7th Cir.1993). Some courts have defined the privilege to encompass:

"intra-governmental documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C.1966), aff'd, 384 F.2d 979 (D.C.Cir.1967). ²

Excluded from the privilege are any factual aspects of predecisional communications, and communications made subsequent to the agency's final decision. Farley, [184 Ill.2d 527] 11 F.3d at 1389, citing National Labor Relations Board v. Sears, Roebuck & Co., 421 U.S. 132, 152, 95 S.Ct. 1504, 1517, 44 L.Ed.2d 29, 48 (1975). In addition, the privilege is qualified in that a litigant may obtain access to privileged communications upon a showing of particularized need. See Sears, 421 U.S. at 149 n. 16, 95 S.Ct. at 1516 n. 16, 44 L.Ed.2d at 46 n. 16. The City urges that we create a privilege based upon this definition.

The primary rationale for the privilege is to ensure the frank exchange of advice and opinions in the course of governmental decisionmaking and policymaking. Zeiss, 40 F.R.D. at 324; see also Kaiser, 157 F.Supp. at 946. Courts adhering to the privilege believe that exposing certain types of predecisional communications to public scrutiny and possible reprisals would produce a "chilling effect" on the candor of government staff, jeopardizing the decisionmaking process. See Farley, 11 F.3d at 1389, quoting United States v. Nixon, 418 U.S. 683, 705, 94 S.Ct.

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[235 Ill.Dec. 438] 3090, 3106, 41 L.Ed.2d 1039, 1062 (1974). Thus, the privilege serves the dual aim of fostering effective and efficient government decisionmaking, and in the process, advancing the public interest.

Nonetheless, privileges are strongly disfavored because they operate to "exclude relevant evidence and thus work against the truthseeking function of legal proceedings." People v. Sanders, 99 Ill.2d 262, 270, 75 Ill.Dec. 682, 457 N.E.2d 1241 (1983); see also Illinois Educational Labor Relations Board v. Homer Community Consolidated School District No. 208, 132 Ill.2d 29, 34, 138 Ill.Dec. 213, 547 N.E.2d 182 (1989), citing Nixon, 418 U.S. at 709-10, 94 S.Ct. at 3108, 41 L.Ed.2d at 1065. Further, it is believed that governmental privileges, if created and applied indiscriminately, will undermine public trust "in the integrity of the government and its commitment to serving the public interest." G. Wetlaufer, Justifying Secrecy: An...