Rockford Police Benevolent And Protective Ass'n v. Morrissey

• Decision Date: 22 January 2010
• Docket Number: No. 2-09-0100.,2-09-0100.
• Citation: 339 Ill.Dec. 84,398 Ill.App.3d 145,925 N.E.2d 1205
• Parties: ROCKFORD POLICE BENEVOLENT AND PROTECTIVE ASSOCIATION, UNIT # 6, Plaintiff-Appellee,v.Larry MORRISSEY, Mayor of the City of Rockford, Chet Epperson, Chief of Police for the City of Rockford Police Department, and the City of Rockford Police Department, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

398 Ill.App.3d 145

925 N.E.2d 1205

339 Ill.Dec. 84

ROCKFORD POLICE BENEVOLENT AND PROTECTIVE ASSOCIATION, UNIT # 6, Plaintiff-Appellee,v.Larry MORRISSEY, Mayor of the City of Rockford, Chet Epperson, Chief of Police for the City of Rockford Police Department, and the City of Rockford Police Department, Defendants-Appellants.

No. 2-09-0100.

Appellate Court of Illinois Second District.

Jan. 22, 2010.

COPYRIGHT MATERIAL OMITTED

Patrick W. Hayes, Legal Director, Angela L. Hammer, City of Rockford Department of Law, for City of Rockford Police Department, Chet Epperson, Chief of Police, Larry Morrissey, Mayor.

Todd S. Reese, Gary S. Reese, Reese & Reese, Rockford, for Rockford Police Benevolent and Protective Association Unit #6.

Justice O'MALLEY delivered the opinion of the court:

Defendants, Larry Morrissey, the mayor of Rockford (mayor), Chet Epperson, the chief of the Rockford police department (chief), and the City of Rockford Police Department (department), appeal the order of the circuit court of Winnebago County granting the cross-motion for summary judgment of plaintiff, the Rockford Police Benevolent and Protective Association, Unit # 6, and denying defendants' cross-motion for summary judgment on plaintiff's Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2006)) request that seeks to compel defendants to disclose the results of a three-part survey ¹ conducted by Rockford College at the behest of the department. Defendants argue that the survey should not be disclosed, under the theories that it is exempt as an audit (see 5 ILCS 140/7(1)(n) (West 2006)), as a personnel matter (see 5 ILCS 140/7(1)(b)(ii) (West 2006)), and under the self-critical analysis privilege. Defendants also argue that plaintiff is not entitled to an award of attorney fees or, alternatively, if plaintiff is entitled to attorney fees, then the trial court's fee award was excessive. We affirm.

The following factual summary is taken from the record on appeal. Plaintiff is the union representing the police officers employed by the department.

In 2007, the department asked a Rockford College class to conduct an anonymous three-part survey. The survey would be given to sworn police officer employees of the department, civilian employees of the department, and residents living in the “Weed & Seed” area of Rockford. Defendants represent that the purpose of the survey was to assess the department's performance. The department's employees were also asked to rate their job satisfaction.

On October 31, 2007, plaintiff submitted FOIA requests seeking disclosure of (1) the three-part survey, (2) records about certain financial expenditures and invoices relating to the department for the period beginning April 10, 2006, through October 31, 2007, (3) public records that the chief had access to or control over in regard to money accounts, funds, credit cards, and cash supplied by the City of Rockford or the department, and (4) department records pertaining to all sick-time usage for the period beginning January 1, 2004, and ending October 31, 2007. On November 27, 2007, defendants denied the first three requests and agreed to the fourth request, subject to agreed-upon limitations. As pertinent here, the FOIA request for the survey was denied based on the audit exception (5 ILCS 140/7(1)(n) (West 2006)), the self-critical analysis privilege as developed under the federal common law, and the deliberative process/preliminary draft exception (5 ILCS 140/7(1)(f) (West 2006)).

Plaintiff filed this action to contest defendants' denial of its first three FOIA requests. During pretrial negotiations, the parties were able to come to an agreement concerning the second and third FOIA requests, for disclosure of the records of financial expenditures and invoices and the public records that the chief had access to or control over. The parties filed cross-motions for summary judgment regarding the disclosure of the survey. On September 29, 2008, the trial court heard argument on the cross-motions for summary judgment. The court directed the parties to submit their positions regarding attorney fees.

On October 9, 2008, the trial court entered judgment on the FOIA request and attorney fees. The trial court held that the survey was not exempt from disclosure either as an audit or pursuant to the self-critical analysis privilege, or any other privilege. The trial court expressly determined that the “fundamental purpose of the request for the 3-part Survey was not to further commercial interests” and that plaintiff was entitled to reasonable attorney fees in an amount to be determined.

Defendants filed a motion to reconsider. The trial court denied defendants' motion to reconsider, accepted plaintiff's supplemental petition for attorney fees, determined that plaintiff was due an award of attorney fees of over $14,000, and ordered defendants to produce the three-part survey within 48 hours. Defendants filed a motion to stay enforcement of the order, which the trial court granted pending the outcome of this appeal. Defendants timely appeal.

Defendants appeal from the trial court's grant of summary judgment in favor of plaintiff. We review de novo the trial court's grant of a motion for summary judgment. Blair v. Nevada Landing Partnership RBG, LP, 369 Ill.App.3d 318, 322, 307 Ill.Dec. 511, 859 N.E.2d 1188 (2006).

Defendants' first contention on appeal is that the survey constitutes an audit for purposes of section 7(1)(n) of the FOIA (5 ILCS 140/7(1)(n) (West 2006)) and that as an audit, it is exempt from disclosure. Section 7(1)(n) of the FOIA exempts:

“Communications between a public body and an attorney or auditor representing the public body that would not be subject to discovery in litigation, and materials prepared or compiled by or for a public body in anticipation of a criminal, civil or administrative proceeding upon the request of an attorney advising the public body, and materials prepared or compiled with respect to internal audits of public bodies.” 5 ILCS 140/7(1)(n) (West 2006).

Under the FOIA, public records are presumed to be open and accessible. Illinois Education Ass'n v. Illinois State Board of Education, 204 Ill.2d 456, 462, 274 Ill.Dec. 430, 791 N.E.2d 522 (2003). Indeed, the FOIA clearly sets forth the legislative intent behind its enactment:

“Pursuant to the fundamental philosophy of the American constitutional form of government, it is declared to be the public policy of the State of Illinois that all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of * * * employees consistent with the terms of this Act. Such access is necessary to enable the people to fulfill their duties of discussing public issues fully and freely, making informed political judgments and monitoring government to ensure that it is being conducted in the public interest.

This Act is not intended to be used to * * * disrupt the duly-undertaken work of any public body independent of the fulfillment of any of the fore-mentioned rights of the people to access to information.

* * *

These restraints on information access should be seen as limited exceptions to the general rule that the people have a right to know the decisions, policies, procedures, rules, standards, and other aspects of government activity that affect the conduct of government and the lives of any or all of the people. The provisions of this Act shall be construed to this end.” 5 ILCS 140/1 (West 2006).

When a public body receives a proper request for information, it must comply with the request unless one of the section 7 (5 ILCS 140/7 (West 2006)) exemptions applies. Illinois Education Ass'n, 204 Ill.2d at 463, 274 Ill.Dec. 430, 791 N.E.2d 522.

If the public body seeks to use one of the section 7 exemptions as a ground for refusing to disclose the requested information, it must give written notice specifying the particular exemption it is claiming to authorize the denial. Illinois Education Ass'n, 204 Ill.2d at 464, 274 Ill.Dec. 430, 791 N.E.2d 522. If the party seeking the information challenges in the circuit court the public body's denial, the public body shoulders the burden of proving that the records in question fall within the claimed exemption. Illinois Education Ass'n, 204 Ill.2d at 464, 274 Ill.Dec. 430, 791 N.E.2d 522. To meet its burden and to assist the court in making its determination, the public body must provide a detailed justification for its claim of exemption, addressing the requested records specifically and in a manner allowing for adequate adversarial testing. Illinois Education Ass'n, 204 Ill.2d at 464, 274 Ill.Dec. 430, 791 N.E.2d 522. With these principles in mind, we turn to defendants' particular contentions.

Defendants note that “audit” is not defined within the FOIA. Defendants also correctly note that the fundamental rule in interpreting a statute is to ascertain and give effect to the intent of the legislature. People ex rel. Birkett v. Konetski, 233 Ill.2d 185, 193, 330 Ill.Dec. 761, 909 N.E.2d 783 (2009). The best evidence of legislative intent is the language used in the statute, giving that language its plain and ordinary meaning. Konetski, 233 Ill.2d at 193, 330 Ill.Dec. 761, 909 N.E.2d 783. Defendants note that “audit” is defined as a methodical examination and review. Defendants assert that the survey at issue here was actually an “audit,” as it was a methodical examination and review of the department's performance as viewed by department personnel and the local public. Defendants conclude that this assessment of the department's performance qualifies as an audit subject to the section 7(1)(n) exemption. We disagree.

In the first instance, defendants provide no detailed rationale (see Illinois Education Ass'n, 204 Ill.2d at 464, 274 Ill.Dec. 430, 791 N.E.2d 522) to explain their bare conclusion that the survey (again, we note that this is defendants' own terminology)...